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GRESS)  SENATE  COMMITTEE  PRINT 


sion 


THE  DECLARATORY  JUDGMENT 


or 

BRIEF 

By  EDWIN  M.  BORCHARtfJEP 

Professor  of  Law,  Yale  University 
SUBMITTED  TO  THE 

r>V      .    ROO/ 


COMMITTEE  ON 

UNITED  STATESOpNATE 

RELATING  TO  THE 

BILL  (S.  5304)  TO  AUTHORIZE  THE  FEDERAL  COURTS 

OF  THE  UNITED  STATES  TO  RENDER 

DECLARATORY  JUDGMENTS 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1919 


[S.  5304,  Sixty-fifth  Congress,  third  session.] 

A  BILL  To  authorize  the  Federal  courts  of  the  United  States  to  render  declaratory 

judgments. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  section  twenty-four  of 
chapter  two  of  the  Judicial  Code,  approved  March  third,  nineteen 
hundred  and  eleven,  be  amended  by  adding  thereto  the  following: 

"Twenty-sixth.  The  district  courts,  the  circuit  courts  of  appeals, 
and  the  Supreme  Court  of  the  United  States  shall  have  power  in  any 
action  or  in  an  independent  or  interlocutory  proceeding,  to  declare 
rights  and  other  legal  relations  on  written  request  for  such  declara- 
tion, whether  or  not  further  relief  is  or  could  be  claimed;  and  such 
declaration  shall  have  the  force  of  a  final  judgment." 
2 


THE  DECLARATORY  JUDGMENT— A  NEEDED  PROCEDURAL 

REFORM. 


By  EDWIN  M.  BORCHARD, 

Professor  of  Law,  Yale  University. 

[Reprinted  from  the  Yale  Law  Journal,  November  and  December,  1918.] 
I. 

The  maintenance  of  the  social  equilibrium  is  accomplished  by  the 
State  through  the  administration  of  justice.1  This  is  the  modern  sub- 
stitute for  the  primitive  practice  of  self-help.  While  the  dawn  of 
civilization  reveals  but  crude  notions  of  judicial  institutions,  one  of 
the  first  manifestations  of  organized  society  was  the  creation  of 
machinery  for  voluntary  arbitration  as  an  optional  substitute  for 
private  vengeance  and  self-help,  the  acknowledged  methods  of  insur- 
ing respect  for  the  societal  rules.  But  the  decisions  of  the  first  judges, 
who  were  merely  arbitrators,  had  only  a  moral  force;  and  if  the  com- 
plaining litigant  was  dissatisfied  with  the  award,  he  could  still  resort 
to  self-help.  For  its  own  protection  against  the  resulting  anarchy 
and  violence,  organized  society,  having  acquired  the  power,  took  upon 
itself  the  monopoly  of  administering  justice  through  established 
courts.  But  though  this  evolution  is  one  of  centuries,  the  funda- 
mental theory  still  prevails  that  the  redress  of  wrongs  is  the  raison 
d'etre  both  of  violent  self-help  and  of  its  more  civilized  substitute,  the 
courts :  and  the  notion  of  vengeance,  while  rejected  by  modern  schools, 
is  still  evident  in  the  penalties  imposed  in  the  administration  of  crim- 
inal justice  and  in  their  tempered  and  better  adjusted  substitute, 
damages,  awarded  in  the  administration  of  civil  justice.  The  com- 
mission of  wrong,  public  or  private,  is  essential,  so  we  are  taught,  in 
order  that  the  judicial  arm  of  the  State  may  be  invoked  to  restore  the 
social  equilibrium.2  Thus  Blackstone  says:  "The  more  effectually 
to  accomplish  the  redress  of  private  injuries,  courts  of  justice  are 
instituted  in  every  ciyilized  society."  3  This  theory  was  fundamental 
in  the  common  law. 

Yet  a  study  of  modern  social  and  industrial  conditions  emphasizes 
the  conviction  that  the  social  equilibrium  is  disturbed  not  only  by  a 
violation  of  private  rights,  privileges,  powers,  and  immunities  4  but 

1  The  complex  relationships  involved  in  the  notion  of  justice  are  not  here  of  immediate  concern.  The 
equilibrium  is  established  through  law,  which  may  be  called  distributive  justice,  and  maintained  through 
the  enforcement  of  law,  which  may  be  called  corrective  justice.  It  is  in  this  latter  aspect  of  justice  that 
our  immediate  interest  centers.  See  on  the  general  subject,  Pulszky,  The  Theory  of  Law  and  Civil  Society 
(London,  1888),  Ch.  XII. 

»  f  almond,  Jurisprudence  (4th  ed.)  sees.  26, 27.    Carter,  Law:  Its  Origin,  Growth,  and  Function,  45  et  seq. 
'3  Bl.  2,  15.    See  also  Pound,  Readings  on  the  History  and  System  of  the  Common  Law  (2d  ed.)  30 
et  seq.    Salmond,  op.  cit.  71:  "Justice  is  administered  only  against  wrongdoers,  in  act  or  in  intent." 

<  In  the  course  of  this  study  we  shall  adopt  Prof.  Wesley  N.  Hohfeld's  valuable  analysis  of  jural  relations 
as  first  set  forth  in  (1913)  23  Yale  Law  Journal,  16.  These  relations  may  most  readily  be  presented  in  Prof. 
Hohfeld's  scheme  of  opposites  and  correlatives: 

Jural  /right         privilege    power          immunity 

Opposites        \no-right    duty          disability    liability 
Jural  /right         privilege    power          immunity 

Correlatives     \duty         no-right     liability       disability 

The  importance  of  this  analysis  is  revealed  throughout  the  subject  of  declaratory  judgments.  See 
particularly  Guaranty  Trust  Co.  v.  Hannay  (C.  A.)  (1915J,  2  K.  B.,  536,  548,  Buckley,  L.  J.,  and  p.  571' 
Bankes,  L.  J. 


4  THE  DECLARATORY  JUDGMENT. 

by  the  placing  of  these  individual  advantages  in  grave  doubt  and 
uncertainty.  If  the  status  of  children  as  legitimate  or  illegitimate  or 
of  persons  as  married  or  unmarried  is  uncertain,  not  only  the  indi- 
vidual but  the  State  has  an  interest  in  having  the  uncertainty  settled 
by  an  authoritative  determination.  If  the  title  to  property  is  uncer- 
tain, the  State,  as  well  as  the  individuals  concerned,  has  an  interest 
in  removing  the  uncertainty,  and  within  certain  limitations  courts  of 
equity  entertain  jurisdiction  to  remove  clouds  from  title.5  If  the 
meaning  of  a  contract  is  in  doubt,  it  must  be  broken  in  order  to  obtain 
an  authoritative  construction  of  it,  with  expensive  litigation  to  boot. 
Similarly,  apart  from  the  trustee's  bill  for  advice,  a  hostile  attack 
must  generally  precede  the  adjudication  of  conflicting  claims  under 
a  will.  To  determine  these  questions,  which  are  illustrations  merely, 
our  law  .now  requires  an  elaborate  procedure  involving  delay,  uncer- 
tainty, and  considerable  expense,  when  all  that  is  desired  is  an  author- 
itative determination  of  a  simple  issue  of  fact  or  of  law.  Parties 
are  compelled  to  indulge  in  legal  hostilities  whether  they  want  to  or 
not  in  order  that  their  legal  relations  may  be  cleared  of  doubt  or 
uncertainty. 

That  the  law  has  not  been  oblivious  to  the  necessity  of  certainty 
and  security  in  legal  relations  is  evidenced  in  the  fact  that  certain 
agreements  in  order  to  obtain  judicial  recognition  must  be  reduced 
to  writing  or  must  be  recorded.  It  is  also  evidence  in  the  employ- 
ment of  such  equitable  remedies  as  bills  quia  timet,  bills  of  peace 
and  bills  to  remove  cloud  from  title,  biUs  for  the  rescission  and  can- 
cellation of  written  instruments,  in  the  action  to  perpetuate  testimony 
and  in  the  bill  for  injunction.  While  the  general  purpose  of  these 
equitable  remedies  is  to  create  security,  remove  uncertainty,  and 
prevent  litigation,6  many  of  the  remedies  are  cumbersome  and  their 
grant  is  dependent  upon  very  technical  conditions  precedent.  Take 
for  example,  the  writ  of  injunction.  Aside  from  its  curative  func- 
tions in  affording  redress  for  certain  kinds  of  continuing  wrongs,  it 
has  important  preventive  functions.  One  of  the  principal  conditions 
of  its  issuance,  however,  is  the  inadequacy  of  the  remedy  at  law, 
and  as  damages  are  deemed  a  sufficient  palliative  for  most  legal 
injuries— again  on  the  theory  that  justice  functions  with  entire 
success  if  it  gives  money  compensation  after  the  commission  of  a 

6  As  a  rule,  however,  only  where  the  plaintiff  is  in  possession.  The  dispute  of  title  to  personal  property 
can  not,  except  in  rare  instances,  be  settled  in  any  such  manner.  See  infra,  p.  30. 

•  The  bill  quia  timet  is  a  writ  of  prevention  designed  to  avoid  possible  future  injury  to  the  applicant's 
property  and  to  preserve  it  for  its  appropriate  uses.  This  is  effected  by  appointment  of  receivers  or  con- 
servators to  collect  income,  or  by  a  demand  for  security.  The  injunction  to  prevent  waste,  etc.,  is  in  the 
nature  of  a  bill  quia  timet.  The  bill  of  peace  is  designed  to  establish  and  perpetuate  a  right  or  privilege 
w.ucn  may  be  controverted  by  different  persons  or  at  different  times  and  is  intended  to  prevent  a  mul- 
tiplicity of  suits.  The  bill  to  remove  cloud  from  title  and  the  cancellation  of  outstanding  instruments 
which  inequitably  affect  a  person's  rights  or  privileges  are  in  the  nature  of  a  remedy  quia  timet.  Sometimes 
the  decree  may  in  such  cases  operate  as  a  declaratory  decree.  Infra,  p.  30. 

The  action  to  perpetuate  testimony,  a  provisional  remedy  well  known  in  Anglo-American  and  in  the 
civil  law,  is  designed  to  preserve  and  perpetuate  for  future  use  testimony  which  is  in  danger  of  being  lost. 
These  equitable  remedies  are  fully  discussed  in  works  on  equity,  particularly  in  those  of  Story  and  of 
Pomeroy.  All  these  remedies  have  a  limited  application,  and  tHeir  grant  is  conditioned  upon  the  fulfill- 
ment of  strict  preliminary  requirements;  and  while  courts  of  equity  have  much  flexibility  in  adapting 
their  relief  to  the  situation  presented,  they  incidentally  have  wide  powers  in  imposing  up'on  applicants 
f  or  the  exercise  of  their  functions  such  conditions  as  they  may  deem  necessary  to  do  equity  in  the  case. 


THE  DECLARATORY  JUDGMENT.  5 

wrong — the  injunction  will  be  issued  but  rarely  to  restrain  a  breach 
of  contract  or  a  trespass.7 

The  limited  scope  of  these  various  kinds  of  preventive  relief 
against  insecurity  and  the  disturbance  of  the  status  quo  makes  it  all 
the  more  necessary  that  we  examine  with  care  that  instrument  of 
preventive  relief  known  to  the  English  and  other  legal  systems  as 
the  declaratory  judgment.  The  distinctive  characteristic  of  such  a 
judgment  is  that  it  carries  with  it  no  coercive  decree  or  order  com- 
manding the  defendant  or  the  sheriff  to  do  anything,  an  inherent 
element  of  all  executory  judgments.  Its  purpose  is  to  afford  security 
and  relief  against  uncertainty  and  doubt.  It  does  not  necessarily 
presuppose  culpable  conduct  on  the  part  of  the  defendant,  but  it 
enables  any  party  whose  rights,  privileges,  powers,  or  immunities, 
whether  evidenced  by  a  written  instrument  or  not,  have  been  dis- 
puted, endangered,  threatened,  or  placed  in  uncertainty  by  another 
person  to  invoke  the  aid  of  a  court  to  obtain  an  authoritative  deter- 
mination or  declaration  of  his  rights  or  other  legal  relations. 

At  the  outset  it  will  be  well  to  circumscribe  the  concept  of  "decla- 
ratory judgment."  In  a  sense  all  judgments  of  courts  declare  jural 
relations,  but  most  of  them,  being  caUed  into  operation  by  some 
past  or  immediately  threatened  violation  of  a  right,  are  followed  by 
further  relief  in  the  form  of  a  judgment  for  the  payment  of  damages 
or  a  decree  for  an  injunction.  These  judgments  require  the  losing 
defendant  to  do  something,  and  may  be  called  executory,  i.  e.,  they 
may  be  executed.  They  always  involve  rights  and  duties.  A 
second  class  of  judgments  likewise  determines  or  establishes  a  jural 
relation;  yet  they  are  not  followed  by  a  decree  ordering  the  per- 
formance of  some  duty  but  merely  by  a  decree  which  effects  some 
change  of  status,  the  judgment  thus  constituting  merely  a  source  of 
new  jural  relations.  Such  are,  among  others,  judgments  of  divorce 
or  of  annulment  of  a  voidable  marriage,  appointments  of  guardians 
or  receivers,  admissions  of  wills  to  probate,  judicial  declarations  of 
death  or  of  majority  in  civil-law  countries, the  judicial  authentication 
of  arrangements  in  which  the  public  interest  requires  an  official  pro- 
tection of  private  jural  relations,  such  as  liquidations,  certain  charges 
in  corporate  organization,8  the  administration  of  trusts,  etc.  They 
may  be  the  result  of  contentious  or  noncontentions  proceedings, 
although  the  latter  are  practically  administrative  rather  than  judicial 
functions.  These  judgments,  because  they  effect  a  change  of  status 
and  are  primarily  a  source  of  new  jural  realtions,  may  be  called 
constitutive  or,  as  we  prefer  to  call  them,  "investitive."9 

7  Generally  only  in  the  case  of  such  contracts  as  agreements  not  to  carry  on  a  trade,  contracts  for  personal 
services  of  exceptional  character,  certain  covenants  restricting  the  use  of  land,  or  where  some  distinctly 
equitable  ground  such  as  the  avoidance  of  a  multiplicity  of  suits  can  be  shown  to  exist.    Usually  an  injunc- 
tion against  breach  will  be  granted  only  where  specific  performance  would  be  decreed.     Courts  of  equity 
are  now  somewhat  more  liberal  in  granting  relief  by  injunction  against  trespass  than  were  the  early  chan- 
cery courts,  but  the  narrow  interpretation  of  "inadequacy  of  legal  remedy"  still  confines  the  injunction 
to  a  limited  class  of  trespasses.    See  Moore  v.  Halliday  (1903),  43  Oreg.,  243;  99  Am.  St.  Rep.,  742;  72  Pac., 
801,  and  note  thereto;  Xenia  Real  Estate  Co.  v.  Mac'y  (1897),  147  Ind.,  568;  47  N.  E.,  147  with  quotation 
from  Pomeroy. 

8  See  In  re  Guardian  Assurance  Co.  [1917],  1  Ch.,  431.    Toronto  Corporation  v.  Toronto  Railway  (P.  C.) 
[19161,  2  A.  C.,542. 

9  This  Benthamism,  whose  use  may  be  pardoned,  seems  more  descriptive  than  the  term  "titles  of  right" 
employed  by  Salmond,  op.  cit.  91.    The  term  "right"  here  is  too  uncertain  in  connotation.     The  Germans 
call  these  judgments  "constitutive."    Perhaps  a  more  accurate  nomenclature  might  use  the  term  "dives- 
titive"  for  those  judgments,  like  the  annulment  of  a  voidable  marriage  or  dissolution  of  partnership,  whirh 
merely  terminate  an  existing  status.    See  Elemer  Balog,  Ueber  das  konstitutive  Urteil  (1907),  34  Zeitschri.t 
fiir  das  priva*  unrl  ollfntliche  R^cht  der  G«g<»nwart,  123-16°;  also  E.  Holder,  Ueber  das  Klagrecht  (1904), 
46  Jhering's  Jahrbiicher,  282,  306,  and  Prof.  Hellman,  Klagrecht,  Feststellungsklage  und  Anspruch  (1892), 
31  ibid.,  90, 114;  also  Hellwig,  System  des  deutschen  Zivilprozessrechts  (Leipzig,  1912),  287. 


6  THE  DECLAKATORY  JUDGMENT. 

The  judgment  in  either  of  these  two  actions,  which  are  directed  to 
some  relief,  may  indeed  involve  solely  the  determination  of  a  status, 
e.  g.,  that  the  petitioner  who  seeks  an  order  authorizing  his  inscription 
as  an  adopted  child,10  or  that  the  decedent  whose  will  is  to  be  probated, 
is  or  was  a  citizen.11  But  tha^e  judgments  are,  nevertheless,  not 
strictly  declaratory.  We  would  confine  that  term  to  those  judg- 
ments which  merely  declare  the  existence  of  a  jural  relation,  i.  e., 
some  right,  privilege,  power  or  immunity  in  the  plaintiff  or  some  duty, 
no-right,  liability  or  disability  in  the  defendant.  They  do  not 
presuppose  a  wrong  already  done,  a  breach  of  duty.  They  can  not  be 
executed,  as  they  order  nothing  to  be  done.  They  do  not  constitute 
operative  facts  creating  new  legal  relations  of  a  secondary  or  remedial 
character;  they  purport  merely  to  declare  preexisting  relations  and 
create  no  secondary  or  remedial  ones.12  Their  distinctive  char- 
acteristic lies  in  the  fact  that  they  constitute  merely  an  authentic 
confirmation  of  already  existing  relations. 

While  the  purpose  of  the  declaratory  judgment,  as  Bailhache,  J.r 
remarked  in  Guaranty  Trust  Co.  v.  Hannay,13  is  not  to  enable  people 
to  "sleep  o'nights,"  such  a  judgment  will  be  rendered  in  the  exercise 
of  the  court's  discretion  when  it  will  serve  some  practical  purpose; 
for  example,  when  it  will  guide  parties  to  a  contract  as  to  their  future 
conduct  under  it,  and  "with  a  view  rather  to  avoid  litigation  than  in 
aid  of  it."  Aside  from  its  employment  in  cases  in  which  the  pre- 
ventive equitable  remedies  above  mentioned  are  inapplicable,  thus 
giving  relief  in  a  new  class  of  cases,  it  has  by  its  simplicity  and  effec- 
tiveness served  largely  to  replace  those  equitable  remedies  where  they 
were  formerly  employed;  and  furthermore,  appreciation  in  practice 
of  the  fact  that  an  amicable  remedy  is  often  more  desirable  than  and 
fully  as  useful  as  a  nonamicable  means  of  adjusting  disputes,  has 
persuaded  litigants  frequently  to  employ  the  declaratory  action 
instead  of  the  coercive  executory  action. 

Prof.  Sunderland  in  an  able  article  on  the  English  declaratory 
judgment14  has  pointed  out  that  the  more  highly  organized  a  society 
is,  the  less  it  is  called  upon  to  display  its  power  in  order  to  insure 
obedience  for  its  decrees.  The  latent  power  of  enforcement,  uni- 
versally realized,  makes  its  exercise  generally  unnecessary.  As 
Salmond  has  expressed  it: 

To  a  large  extent  already,  in  all  orderly  societies,  this  element  in  the  administration 
of  justice  has  become  merely  latent;  it  is  now  for  the  most  part  sufficient  for  the 
State  to  declare  the  rights  and  duties  of  its  subjects,  without  going  beyond  declaration 
o  enforcement.15 

Even  in  the  international  field,  less  perfectly  ordered  and  least  stable 
among1  the  strata  of  organized  society,  only  four  cases  are  known 
among  the  thousands  of  awards  of  arbitral  commissions  in  which  there 

>«  In  re  Hollaender  and  Donnet  (Sept.  8, 1916,  Court  of  Rouen)  reported  in  (1917)  44  Clunet,  1009. . 

»  In  re  Lee's  Will  (Mar.  30,  1918,  Ul  S.  Court  for  China)  (1918),  27  Yale  Law  Journal,  1082. 

11  Strictly  soeikin?,  jul?m?nts  dismissing  a  complaint  are  declaratory  in  their  nature,  but  they  differ 
in  princinle  from  those  now  unler  consideration  in  that  some  coercive  relief  was  asked  for.  An  exhaustive 
theoretical  discussion  of  the  distin?tion  between  the  declaratory  judgment  and  the  executory— also  called 
disoositive  or  coniemnitory — judgment  is  to  be  found  in  F.  F.  Heim,  Die  Feststellungswirkung  des 
Zivilurteils  (Munich,  1912)  particularly  pr>.  45-50,  70-75.  This  monograph  constitutes  part  1  of  v.  25  of  the 
Abhanllun?en  zum  Privatrecht  und  Zivilprozess.  edited  by  Prof.  Otto  Fischer. 

"  (K.  B.)  113  L.  T.,  98,  101. 

»« A  Modern  Evolution  in  Remedial  Rights— the  Declaratory  Judgment  (1917),  16  Mich.  L.  Rev.,  69. 
This  is  the  only  monographic  study  on  the  subject  in  the  English  language  known  to  the  writer,  with  the 
excention  of  a  brief  article  on  the  Scotch  action  of  declarator  in  (1849)  41  Law  Magazine,  173. 

14  Salmond,  op.  cit.,  66. 


THE  DECLARATORY  JUDGMENT.  7 

has  been  a  refusal  to  submit  to  the  award.18  Here,  the  arbitrators 
having  no  power  to  enforce  their  decision,  the  constraint  of  public 
opinion  alone  compelled  obedience.  A  fortioii,  therefore,  when  the 
State  possesses  full  power  to  enforce  its  decrees,  legislative  as  well 
as  judicial,  the  inclusion  of  a  special  command  with  each  decree  seems 
unnecessary.  The  mere  authoritative  declaration  of  the  reciprocal 
rights  and  obligations  of  the  parties  suffices  to  insure  obedience;  but 
should  a  losing  party  charged  with  duties  actually  prove  recalcitrant, 
it  is  very  simple,  in  view  of  the  fact  that  the  declaratory  judgment  is 
res  adjudicata,  to  obtain  an  ordinary  judgment  upon  which  a  writ 
of  execution  may  issue. 

Up  to  the  present  time,  with  the  exception  of  that  class  of  judgments 
which  we  may  call  purely  "investitive,"  such  as  decrees  of  divorce, 
discharges  in  bankruptcy,  appointments  of  receivers,  etc.,  which  do 
not  operate  as  remedies  for  wrongs,  but  merely  as  creators  of  new 
jural  relations,  our  actions  and  the  resulting  judgments  are  directed  to 
immediate  coercive  relief  from  the  court,  either  by  way  of  damages, 
injunction  or  some  other  command  or  decree.  The  very  form  of  the 
demand  by  the  plaintiff  indicates  a  recalcitrant  or  culpable  defendant 
and  the  scene  is  set  for  legal  war. 

As  Prof.  Sunderland  has  pointed  out,  the  declaratory  action,  in 
cases  where  the  plaintiff  does  not  demand  coercive  relief,  leads  to 
the  same  effective  result  as  the  hostile  action  for  damages  or  an 
injunction,  with  much  simplified  procedure  and  under  the  assump- 
tion, justified  in  most  cases  between  responsible  litigants,  that  both 
parties  wish  to  do  right  and  act  honestly.  The  issue  is  framed  for 
the  answer  of  the  court  in  a  stated  question,  for  example,  "whether 
the  assignment  by  F.  T.  B.  *  *  *  was  void  as  against  his  trustee 
in  bankruptcy"17  or  the  plaintiff  claims  a  declaration  "that  the 
defendants  *  *  *  in  respect  of  the  lands  in  question  were  not 
entitled  to  exercise  the  power  of  entry,  etc.;18  and  the  facts  being 
before  the  court,  in  contradistinction  to  the  procedure  on  demurrer 
the  specific  issue  of  law  is  answered  usually  by  a  simple  "yes"  or 
uno"  or  by  a  mere  grant  or  refusal  of  the  declaration  requested. 
The  request  for  a  declaration  is  very  frequently  accompanied  in  a 
separate  prayer  by  a  demand  for  coercive  relief  in  the  form  of  injunc- 
tion or  other  decree,  the  advantage  being  that  even  though  the 
injunction  may  be  refused,  the  declaration  of  the  legal  relations 
of  the  parties  may  still  be  made  and  the  parties  will  govern  themselves 
accordingly.19  This  usually  serves  the  plaintiff's  purpose  and  renders 
further  assistance  from  the  courts  unnecessary. 

H  Three  of  these  were  based  upon  an  alleged  departure  by  the  arbitrator  from  the  terms  of  the  compromis. 

i"  In  re  Bulteel's  Settlements  ]l917|.  1  Ch.,  251,  255. 

'8  Taff  Vale  Railway  v.  Cardiff  Railway  (C.  A.)  [1917],  1  Ch.,  293,  302.  Even  before  the  enictment  of  15 
and  16  Viet.,  ch.  .50,  sec.  86  (1852),  which  is  generally  regarded  as  the  first  legislative  authorization  of  the 
declaratory  judgment,  Parliament  had  enacted  in  1850  an  act,  13  and  14  Viet.,  ch.  35,  sec.  1,  "to  diminish  the 
delay  and  expense  of  proceedings  in  the  high  court  of  chancery  in  England,"  reading  in  part  as  follows: 

"That  it  shall  be  lawful  for  persons  interested  or  claiming  to  be  interested  in  any  question  cognizable 
in  the  said  court  as  to  the  construction  of  any  act  of  Parliament,  will,  deed,  or  other  instrument  in  writing,  or 
any  article,  clause,  matter,  or  thing  therein  contained,  or  as  to  the  title  or  evidence  of  title  to  any  real  or 
personal  estate  contracted  to  be  sold  or  otherwise  dealt  with,  or  as  to  the  parties  to  or  the  form  of  any  deed 
or  Instrument  for  carrying  any  such  contract  into  effect,  or  as  to  any  other  matter  falling  within  the  original 
jurisdiction  of  the  said  court  as  a  court  of  equity,  or  made  subject  to.  the  jurisdiction  or  authority  of  the 
said  court  by  any  statute  not  being  one  of  the  statutes  relating  to  bankrupts,  and  including  among  such 
persons  all  lunatics,  married  women,  and  infants,  in  the  manner  and  under  the  restrictions  hereinafter 
contained,  to  concur  in  stating  such  question  in  the  form  of  a  soecial  case  for  the  opinion  of  the  said  court, 
and  it  shall  also  be  lawful  for  all  executors,  administrators,  and  trustees  to  concur  in  such  case." 

is  S*e,  for  example,  London  Assn.  of  Shipowners,  etc.,  v.  London  &  India  Docks,  etc.  (C.  A.)  [18921,  3  Ch., 
242,  wh:re  the  claim  for  injunction  was  abandoned;  Llandudno  Urban  Council  v.  Woods  [1899],  2  Ch.,  705, 
where  an  injunction  was  refused. 


8  THE  DECLARATORY  JUDGMENT. 

The  close  analogy  between  the  declaratory  judgment  and  arbitra- 
tion will  already  have  become  apparent.  In  countries  authorizing  the 
declaratory  judgment,  the  law  now  furnishes  parties  with  official 
"arbitrators"  whose  function  it  is  to  declare  the  legal  relations  exist- 
ing between  the  parties  and  the  law  endows  their  decision  with  binding 
force. 

The  strongest  attestation  of  the  efficacy  of  this  procedure  is  the 
increasing  frequency  with  which  it  has  been  resorted  to  in  the  English 
courts.  Of  the  official  reports  of  cases  in  the  chancery  division  in 
1884,  34  per  cent  were  declaratory  actions;  in  1916,  based  upon  the 
cases  reported  in  second  chancery  division  this  percentage  had  risen 
to  67  per  cent  and  in  1917  it  reached  66  per  cent.  There  is  every 
probability  that  recourse  to  the  declaratory  action  will  continue  to 
increase.  The  great  merits  of  the  procedure,  as  evidenced  by  its  con- 
stant employment  in  England,  Scotland,  Ireland,  India,  Ontario, 
British  Columbia,  and  other  Canadian  Provinces,  in  Australia,  New 
Zealand,  and  several  of  the  Australian  States,  and  in  Germany  and 
Austria  commend  it  to  the  American  legal  system  as  a  reform  worthy 
of  adoption. 

Before  entering  upon  an  account  of  the  historical  development  of 
this  important  institution  and  an  analysis  of  the  various  classes  of 
cases  in  which  it  has  been  employed,  it  seems  desirable  to  call  atten- 
tion to  the  fact  that  the  declaration  may  be  requested  by  the  plaintiff 
and  made  by  the  court  either  in  the  affirmative  or  in  the  negative 
form.  While  all  jural  relations  necessarily  involve  their  correlatives 
and  their  corresponding  opposites  in  the  other  party,  the  affirmative 
form  of  declaration  is  apparently  generally  employed  where  the 
plaintiff  asserts  his  own  right  or  power  or  the  defendant's  duty  or 
liability.  For  example,  A  asks  a  declaration  of  his  right  of  way  over 
B's  land  or  of  his  power  to  assign  a  certain  lease  without  the  landlord's 
consent;  or  he  may  ask  a  declaration  that  B  is  indebted  to  him  for  a 
year's  rent  or  that  B  is  responsible  for  the  debts  that  may  be  con- 
tracted by  his  wife.  The  affirmative  form  of  declaration  is  usual 
when  the  plaintiff's  cause  of  action  is  one  in  which  he  might  have 
been  able  to  obtain  coercive  relief  but  is  satisfied  with  a  declaratory 
judgment. 

The  second  or  negative  form  of  declaration  affords  in  certain  cases 
a  novel  kind  of  relief,  to  be  explained  presently.  It  is  usually  under 
the  form  of  a  negative  declaration  that  the  plaintiff  asserts  his  privi- 
lege or  immunity  or  the  defendant's  no  right  or  disability  (no  power).20 
For  example,  B  may  ask  a  declaration  that  he  is  not  obliged  to  return 
to  A  a  sum  of  money  previously  paid  to  B  (privilege) ;  or  that  he  is 
not  subject,  as  a  nonresident,  to  the  payment  of  certain  taxes 
(immunity);  or,  he  may  claim  a  declaration  that  A  has  "no  right" 
to  walk  over  his  land ;  or,  being  himself  a  remainderman,  he  may  ask 
a  declaration  that  the  defendant,  a  life  tenant,  has  no  power  (i.  e., 
is  under  a  disability)  to  convey  the  fee  simple.  In  some  of  these 
cases,  notably  in  the  first  two,  the  plaintiff  has  no  cause  of  action, 
yet  by  reason  of  the  declaratory  procedure  he  is  enabled  as  "equi- 
table" plaintiff  (prospective  legal  defendant)  to  bring  the  defendant 
into  court  and  to  compel  him  to  prove  his  claim  or  be  barred  from 
asserting  it  thereafter  against  the  plaintiff. 

10  See  Prof.  Hohfeld's  scheme  of  jural  opposites  and  correlatives,  supra,  note  4. 


THE  DECLAKATORY  JUDGMENT.  9 

The  plaintiff  asserts  his  privilege  or  freedom  from  the  claim  of  the 
•defendant.  This  valuable  form  of  relief  by  way  of  negative  declara- 
tion of  privilege  has  been  consciously  admitted  in  England  only  since 
1915,  when  the  important  case  of  Guaranty  Trust  Co.  v.  Hannay  21 
was  decided  by  the  court  of  appeal,  two  judges  deciding  in  favor  of 
the  negative  declaration  and  one  against  it.22  In  that  case,  certain 
bills  of  exchange  supported  by  certain  forged  bills  of  lading  purporting 
to  represent  cotton  were  purchased  by  the  Guaranty  Trust  Co.  of 
New  York.  They  were  accepted  in  England  by  Hannay  &  Co.  and 
paid.  It  was  then  discovered  that  the  bills  of  lading  were  forged  and 
did  not  represent  goods  actually  shipped.  Hannay  &  Co.  brought  an 
action  in  the  Federal  district  court  in  New  York  to  recover  the  money 
they  had  paid  the  Guaranty  Trust  Co.  alleging  that  the  bills  of  ex- 
change were  non-negotiable  and  conditional  upon  the  actual  exist- 
ence of  cotton.23  The  Federal  circuit  court  of  appeals  held  that  the 
decision  depended  upon  English  law,  whereupon  the  Guaranty  Trust 
Co.  brought  an  action  in  England  for  "a  declaration  that  the  plaintiffs 
are  not  liable  to  repay  to  the  defendants  any  sums  paid  by  them"  in 
respect  of  these  bills  of  exchange.  The  defendants  denied  the  juris- 
diction of  the  court  to  make  such  a  declaration,  inasmuch  as  the 
plaintiffs  had  no  "cause  of  action";  and  certain  English  courts24 
had  indeed  considered  this  a  condition  precedent  to  a  "  declaration  of 
right"  as  it  is  called  by  the  English  Order  XXV,  rule  5,  of  the  Rules 
of  1883  of  the  Supreme  Court.  That  rule  reads: 

No  action  or  proceeding  shall  be  open  to  objection  on  the  ground  that  a  merely 
declaratory  judgment  or  order  is  sought  thereby,  and  the  court  may  make  binding 
declarations  of  right  whether  any  consequential  relief  is  or  could  be  claimed  or  not. 

Bulkley,  L.  J.,  held  that  the  cause  of  action  here  being  in  the  de- 
fendant and  not  in  the  plaintiff,  no  declaration  could  be  made.25 
Pickford,  L.  J.,  relying  principally  on  two  earlier  cases26  in  which  the 
question  had  not  been  specially  raised,  and  not  wishing  to  narrow  the 
court's  power,  held,  while  considering  the  exercise  of  the  power  very 
exceptional,  that  the  court  had  jurisdiction  to  make  the  declaration 
asked.27 

Bankes,  L.  J.,  believed  that  while  a  cause  of  action  was  necessary 
in  view  of  the  phrase  "declaration  of  right,"  whereas  plaintiffs  asked 
a  declaration  of  their  freedom  from  a  duty  (i.  e.,  a  privilege),  still  the 
first  part  of  the  rule  which  speaks  of  "declaratory  judgment  or  order" 
gave  the  court  power  to  make  a  declaratory  order,  without  limiting 
it  to  a  declaration  of  "right"  and  the  second  part  of  the  rule  con- 
templates a  person  seeking  "relief,"  which  is  not  confined  to  relief 
in  respect  of  a  cause  of  action.28  While  this  may  be  dictum,  the 
opinion  constitutes  a  most  exhaustive  discussion  01  this  phase  of  the 
declaratory  action;  and  while  the  grounds  of  the  decision  are  not 

21  (C.  A .)  [1915]  536. 

22  The  term  negative  declaration  is  not  used  in  England,  although  it  is  in  Germany.    This  particular  form 
of  declaration  has  bean  used  in  Scotland  for  300  years  and  on  the  continent  of  Europe  probably  longer.    Its 
history  will  be  set  forth  presently. 

»  (1911)  187  Fed.  686;  (1913)  210  Fed.  810.  For  a  comment  on  this  case,  see  (1918)  27  Yale  Law  Journal, 
1016. 

2<  Brooking  v.  Maudsley,  Son  &  Field  (1SS3)  38  Ch.  D.,  636,  646;  Williams  ».  North's  Navigation  Collieries 
(1904),  2  K.  B.,  44,  49;  North  Eastern  Marine  Engineering  Co.  v.  Leeds  Forge  Co.  (1906),  1  Ch.,  324;  (C.  A.) 
(1903)  2  Ch.  498:  Offin  v.  Rochford  Rural  Council  (1908)  1  Ch.,  342. 

20  (1915)  2  K.  B.,548. 

2»  London  Assn.  of  Shipowners,  etc.,  v.  London  &  India  Docks,  etc.  (C.  A.)  (1892),  3  Ch.,  242;  Dyson  v. 
Attorney  General  (C.  A.)  (1912),  1  Ch.,  158. 

27  (1915)  2  K.  B.,  565. 

2«  Ibid. ,574. 


10  THE  DECLARATORY  JUDGMENT. 

entirely  satisfactory — for  two  of  the  three  judges  seemed  to  think 
that  trie  plaintiff  ought  to  have  an  affirmative  cause  of  action — 
subsequent  decisions  during  the  last  two  years  have  placed  it  beyond 
doubt  that  the  negative  form  of  declaration  is  within  the  jurisdiction 
of  the  court.28a  It  is  interesting  to  observe  that  the  term  declaration 
of  "right" — which  was  probably  not  meant  in  the  narrow  yet  tech- 
nically correct  sense  in  which  Bankes,  L.  J.,  interpreted  it,  namely,  as 
excluding  privilege,  power  or  immunity — is  in  the  German  code  of 
civil  procedure  of  1877  converted  into  the  term  declaration  of  "legal 
relations,"  and  in  the  Specific  Relief  Act  of  India  of  the  same  year, 
though  called  a  declaration  of  "right,"  is  by  the  authoritative  illus- 
trations which  accompany  the  statute  applied  not  only  to  rights  but 
to  other  jural  relations  as  well. 

HISTORICAL   DEVELOPMENT. 
(A)    ROMAN   LAW. 

The  affirmative  declaratory  judgment  finds  .its  origin  in  the  Roman 
law.  In  the  Roman  law  of  procedure,  as  in  our  own,  the  action  at  law 
led  to  an  executory  judgment,  condemnation9  But  it  often  proved 
necessary  to  decide  in  a  preliminary  way  certain  questions  of  law  or 
of  fact  which  the  parties  themselves,  by  agreement,  or  the  magistrate 
or  praetor,  at  the  request  of  one  of  the  parties,  might  submit  to  the 
jucfex  for  decision.  This  decision  was  merely  a  declaration  of  the 
judex  in  response  to  the  question  submitted.  Instead  of  commanding 
the  performance  of  some  act,  his  decision  constituted  merely  the 
affirmation  of  an  existing  state  of  facts  or  of  law.  Being  merely  inci- 
dental or  preliminary  to  an  ordinary  executory  action,  it  was  Imown 
as  a  prae-judicium.  It  ended  in  a  pronuntiatio,  not  in  a  condemnatio. 
In  the  period  of  the  legis  actiones  this  pronuntiatio  was  obtained  by 
means  of  the  sponsio,  so  far  as  the  question  was  not  taken  up  in  the 
legis  actio  itself.  In  the  formulary  procedure  the  form  of  submission 
was  greatly  simplified.  In  the  intentio  the  formula  stated  the 
specific  question  of  law  or  fact  which  had  to  be  determined;  it  was 
much  like  the  regular  formula  for  the  trial  of  an  action,  except  that 
the  condemnatio  was  omitted. 

This  procedure  proved  so  useful  that  it  was  ultimately  extended  to 
independent  actions  where  no  executory  judgment  (condemnatio) 
was  required  or  desired.  The  actions  then  received  the  name  actiones 
praejudiciales,  the  dignity  of  actiones  having  theretofore  been  denied 
them.30  In  application  they  were  limited  to  certain  classes  of  cases, 
principally  questions  of  status  and  of  certain  property  rights  and  rela- 
tions incidental  to  status,  such  as  the  amount  of  a  wife's  dowry  which 
had  to  be  returned  to  her  on  the  termination  of  the  marriage,  and, 
less  frequently,  questions  of  the  validity  of  legal  instruments.  These 
actions,  which  were  personal  actions  in  rem,  are  grouped  by  Wind- 

:a»  Infra,  notes  307  et  seq. 

59  In  this  word  "condemnatio,"  which  was  a  civil  executory  judgment  commanding  that  something  be 
done,  e.  g.,  that  damages  be  paid,  the  underlying  theory  that'judicial  relief  involves  the  redress  of  wrong- 
doing becomes  clear.  Only  proceedings  which  1  ed  to  a  condemnatio  were  called  actions  in  the  classical 
Roman  law;  with  the  exception  of  "investitive"  judgments,  e.  g.,  judgments  of  divorce,  the  appointment 
of  receivers,  etc..  this  still  appears  to  represent  the  conception  of  actions  in  our  law. 

»  Some  authorities  assert  that  they  are  still  merely  interlocutory  judgments;  but  while  of  course  it  was 
always  possible  to  follow  them  with  an  executory  action,  this  was  so' frequently  not  done  that  their  inde- 
pendent status  came  to  be  recognized.  Gaius  is  our  principa1  source  of  knowledge  on  the  subject  of  the 
actiones  praejudiciales. 


THE  DECLAKATOEY  JUDGMENT.  11 

scheid  as  including  questions  of  status  libertatis,  civitatis,  familiae. 
The  questions,  among  others,  more  frequently  submitted  to  deter- 
mination related  to  the  status  of  and  property  in  slaves;  declarations 
of  liberty;  questions  of  the  power  of  the  master,  and  of  the  father 
over  his  children;  questions  of  legitimacy  and  of  family  relationship; 
the  validity  or  invalidity  of  a  will  (querela  inofficiosi  testamenti)31  and 
of  other  legal  instruments.32 

It  is  interesting  to  observe  that  the  development  of  the  declaratory 
judgment  during  the  Middle  Ages  and  after  the  "reception"  of  Roman 
law  in  continental  Europe  in  1495,  questions  of  status,  of  property- 
rights  connected  therewith,  and  of  the  validity  or  invalidity  of  wills 
and  other  legal  instruments,  constitute  the  principal  subjects  of 
declaratory  actions.  At  the  present  time,  however,  instead  of  being 
confined  to  a  limited  number  of  subjects  with  individual  forms,  the 
declaratory  action  is  almost  unlimited  as  to  subjects  and  has  a  general 
form  sufficiently  wide  to  accommodate  any  specific  questions. 

That  the  declaratory  action  is  in  effect  an  action  for  the  security 
and  protection  of  existing  rights,  privileges,  powers  or  immunities 
is  made  evident  by  tracing  the  history  and  purpose  of  the  negative 
form  of  declaratory  judgment.  By  this  action  the  plaintiff  asks  a 
declaration  that  the  defendant  has  no  right  as  opposed  to  the  plain- 
tiff's privilege,  i.  e.,  that  the  plaintiff  is  under  no  duty  to  the  defend- 
ant, or  that  the  plaintiff  is  under  an  immunity  from  any  power  of  or 
control  by  (i.  e.,  there  is  a  disability  of)  the  defendant.  The  danger 
of  uncertainty  and  insecurity  of  rights  and  other  jural  relations  against 
which  the  declaratory  action  was  designed  to  guard  was  threatened  in 
one  of  two  ways — either  by  the  defendant's  denial  of  well-established 
and  well-founded  rights  or  other  legal  relations,  or  by  the  defendant's 
assertion  of  unfounded  claims.  It  was  to  meet  the  second  class  of 
danger  that  the  negative  declaratory  action  was  invented.  The 
classical  Roman  law  hardly  knew  this  remedy  at  all,  except  with 
respect  to  the  actio  negatoria  utilis,  to  protect  a  possessor  or  pledgee 
against  claims  conflicting  with  the  exercise  of  his  rights,  etc.,  in  prop- 
erty. In  the  Code  of  Justinian33  the  first  mention  is  to  be  found  of 
the  so-called  Lex  Diffamari,  embodying  a  rescript  of  one  of  the 
emperors  to  a  certain  Cresceus  whose  status  some  one  had  disparaged 
by  asserting  that  he  was  not  free-born.  The  passage  authorized  the 
person  slandered  to  cite  the  adverse  party,  and  if  the  latter  failed 

•'  See  1  Bekker,  Die  Aktionen  des  romischen  Privatreehts  (Berlin,  1871),  ch.  14,  p.  272  et  seq.  The  form 
of  the  action  really  makes  this  an  action  for  a  declaration  of  the  invalidity  of  a  will. 

**  A  vast  amount  of  learning  in  the  literature  of  the  Roman  law  has  been  devoted  to  the  elucidation  of  the 
actiones  praejudiciales.  Of  that  examined,  the  following  may  be  recommended  as  the  most  useful:  4  Gaius 
(Poste's  3d  ed.),  sec.  44:  1  Bekker,  op.  cit.  283  et  seq.:  2  Bethmann-Hollweg,  Der  romische  Civilprozess 
(Bonn,  1865),  sec.  97:  Windscheid,  Lehrbuch  des  Pandektenrechts  (5th  ed.),  sec.  45,  pp.  111-112;  sec.  122, 
pp.  360-3til;  Baron,  Pandekten  (9th  ed.)  sec.  80,  p.  161;  and  a  valuable  monograph  by  Degenkolb,  Einlas- 
sungszwang  und  Lrtcilsnorm  (Leipzig,  1877),  96,  131,  146-168,  187  et  seq.  Degenkolb,  p.  188,  points  out 
certain  remedies  of  the  Roman  law  which  are  in  the  nature  of  declaratory  actions,  all  of  which  are  directed 
to  the  security  of  the  plaintiff,  e.  g.,  the  interrogations  in  jure,  the  action  arising  out  of  nondelivery  of  a 
receipt,  the  demand  for  a  bond  (cautio),  and  the  liberationis  condictio,  or  release  from  a  possibly  existing 
obligation  (but  not  the  establishment  of  a  non  debet). 

Some  writers  place  in  a  separate  category  the  summary  action  on  bills  of  exchange  and  other  commercial 
documents  which  carry  with  them,  after  formal  acknowledgment  or  admission  of  the  signature  of  the  party 
charged,  a  right  to  the  immediate  issuance  of  a  writ  of  execution.  The  party  charged  must  then  give  Dond 
to  stay  the  execution.  This  procedure  is  known  to  most  of  the  civil  law  countries,  which  endow  commercial 
contracts  with  a  special  sanctity  and  protection.  See  Borchard,  Guide  to  the  Law  and  Legal  Literature  of 
Argentina,  Brazil,  and  Chile  (Washington,  1917)  95, 408.  The  procedure  for  securiug  the  debtor's  acknowl- 
edgment of  his  signature  has  some  resemblance  to  the  declaratory  action.  It  is  aimed  primarily  at  recog- 
nition or  admission  by  the  party  defendant  rather  than  at  declaration  by  the  judge,  although  this  is  its 
subsidiary  purpose,  should  the  defendant  refuse  his  recognition.  See  Leonhard,  De  natura  actionis  quae 
praejudicialis  vocatur (Leipzig,  1874),  17et  seq. 

83  ("ode,  7,  14,5.  A  translation  of  the  passage  is  to  be  found  in  DeVillier's  edition  of  Voet's  Commentary 
on  the  Pandects  (Cape  Town,  1900),  Book  XLVII,  Tit.  10,  p.  143. 


12  THE  DECLAKATORY  JUDGMENT. 

to  prove  his  assertion  he  was  to  be  ordered  to  keep  silent.  Primarily 
this  involved  both  a  declaration  of  privilege  and  of  a  right,  followed 
by  an  executory  injunction. 

The  real  development  of  this  form  of  relief  by  action  is  to  be  found 
in  the  Roman  civil  law  of  the  Middle  Ages,  notably  in  Italy.  Amon<* 
the  several  forms  of  protection  against  the  assertion  of  unfounded 
claims  which  grew  up  at  that  period,  four  received  extended  applica- 
tion: (1)  the  provocatio  ex  lege  diffamari,  which  affords  the  broadest 
foundation  for  the  modern  negative  declaratory  action,  and  the 
provocatio  ad  agendum  ex  lege  si  contendat  ;34  (2) the  so-called  querela 
nullitatis,35  upon  which  the  modern  civil-law  actions  declaring  the 
nullity  of  legal  transactions  is  founded;36  (3)  the  so-called  liberationis 
condictio;  and  (4)  the  actio  negatoria  utilis.37  There  were  of  course 
certain  additional  remedies  to  assure  protection  against  unfounded 
claims,  but  these  were  usually  incidental  to  some  coercive  relief  which 
was  prayed.  These  are  the  protection  of  possession  against  the  tur- 
batio  verbis  through  the  assertion  of  false  claims,  and  the  flexible 
imploratio  judicis  for  the  determination  of  privilege  or  nonliability, 
i.  e.,  immunity.38 

This  variety  of  measures  for  the  protection  of  security  would  indi- 
cate that  society  during  the  Middle  Ages  was  more  sensitive  than 
were  the  Romans  to  the  social  and  individual  danger  of  insecurity 
arising  out  of  uncertainty  of  legal  relations.  This  is  traceable  in  two 
well-known  legal  phenomena  of  that  period:  the  conceptions  (a)  that 
it  was  a  personal  injury  in  the  nature  of  slander  to  have  an  unfounded 
action  brought  against  one;  and  (6)  that  society  had  an  interest  in 
the  protection  of  the  status  quo.  While  an  action  is  a  method  of 
restoring  a  disturbed  legal  equilibrium  and  therefore  an  aid  to  ordered 
community  life,  it  nevertheless  constitutes  a  disturbance  of  the  peace 
of  the  person  threatened  with  it.  For  him  it  is  a  vacillation  between 
war  and  peace.  Owing  to  this  dual  conception,  and  to  the  theory  that 
by  awaiting  a  time  unfavorable  to  the  defendant  for  bringing  suit  the 
plaintiff  was  in  fact  abusing  his  privilege  of  resorting  to  the  courts — 
a  kind  of  slander  by  way  of  action — the  procedure  was  invented  of 
enabling  the  prospective  defendant  to  appear  as  plaintiff  with  the 
power  to  compel  his  opponent  to  come  forward  with  his  claim,  prove 
it,  or  ever  after  remain  silent  (poena  perpetui  silentii) .  In  this 
provocatio  ex  lege  diffamari  lies  the  origin  of  the  negative  declaratory 
action.  Confined  at  first  to  a  remedy  against  the  untimely  institution 
of  a  suit  against  the  plaintiff,  it  soon  developed  into  a  remedy  against 
the  institution  of  an  unmeritorious  or  unfounded  suit,  by  compelling 
the  defendant  to  bring  his  threatened  claim  to  action  at  once  or  be 

34  By  this  proceeding  the  surety  could  require  the  creditor  to  bring  his  action  against  the  principal  debtor, 
under  penalty  of  discharging  the  surety  from  all  further  liability.  Baron,  op.  cit.  480.  Similar  relief 
may  be  obtained  by  our  bill  quia  timet  by  which  the  surety  can  require  the  debtor  to  discharge  the  debt 
or  the  creditor  to  sue  the  debtor.  Hayes  v.  Ward  (1819,  N.  Y.),  4  Johns,  ch.,  123,  131;  Wright  v.  Simpson 
(1802),  6  Ves.,  734. 

5  Baron,  op.  cit.  124;  Winscheid,  op.  cit.  223,  note  6. 

3t  Probably  most  legal  systems  provide  for  a  judicial  declaration  that  a  void  act  is  void;  this  is  the  purpose 
of  the  French  action  en  nullit^  and  of  the  German  Nichtigkeitsklage.  The  Anglo-American  law  has  inher- 
ited from  the  civil  law  a  somewhat  similar  procedure  in  the  case  of  marriage  void  ab  initio.  But  beyond 
this,  in  our  law,  such  a  declaration  would  only  be  incidental  to  an  action  for  some  further  relief,  such  as 
setting  aside  or  ordering  the  destruction  or  delivery  up  of  a  void  instrument;  and  many  courts  refuse  such 
relief  in  the  case  of  an  instrument  void  on  its  face  on  the  ground  that  its  admitted  invalidity  is  without 
further  relief  a  sufficient  protection  against  unfounded  claims  based  upon  it.  Such  a  decision  would  in 
effect  be  a  declaratory  judgment.  So  also,  a  decision  declaring  the  unconstitutionally  of  a  statute. 

"  For  the  protection  of  privileges  and  immunities  with  respect  to  property.  The  privileges  would,  of 
course,  disclose  the  additional  presence  of  rights  in  case  of  an  active  attempt  to  interfere  with  the  exercise 
of  the  privileges. 

M  Degenkolb,  op.  cit.  203,  204. 


THE  DECLARATORY  JUDGMENT.  13 

thereafter  barred  from  asserting  it.39  Against  the  assertion  of  an 
unfounded  money  demand,  the  provocatio  diffamari  was  aided  by  the 
liberationis  condictio  and  the  imploratio  judicis  for  the  declaration  of 
plaintiff's  freedom  from  duty  or  liability.40  It  may  again  be  noted  that 
these  remedies  are  independent  of  any  tortious  conduct  on  the  part 
of  the  person  against  whom  they  are  directed. 

Just  as  the  provocatio  ex  lege  diffamari  was  extended  to  substan- 
tive claims  of  all  kinds,  so  the  provocatio  ex  lege  si  contendat,  was 
extended  beyond  the  surety's  action  to  protect  himself  from  liability 
to  other  actions  in  which  the  plaintiff  alleged  that  a  defense  now 
available  to  him  might  be  lost  by  the  defendant's  delay  in  institut- 
ing against  him  an  action  to  which  he  had  a  valid  defense.  Both 
proceedings,  which  tended  to  become  interchangeable,  looked  to  the 
assertion  of  the  plaintiff's  privilege  as  against  unfounded  claims  of 
the  defendant. 

(B)    MODERN   LAW. 

After  the  "reception"  of  the  Roman  law  in  central  Europe  both 
forms  of  declaratory  action,  the  positive  and  the  negative,  were  recog- 
nized, and  down  to  the  end  of  the  nineteenth  century  the  codes  of 
civil  procedure  of  numerous  states  provided  for  the  praejudiciales 
actions  and  for  the  provocatios.  In  western  Europe  they  do  not 
appear  to  have  acquired  great  vogue,  although  the  canon  law  gave 
vitality  to  the  provocatio  ex  lege  diffamari  (the  negative  form  of 
declaration)  in  reference  to  questions  of  status  and  particularly  to 
one  of  its  important  forms,  the  jactitation  proceeding,  as  applied 
especially  to  marriage. 

France. — That  the  early  French  law  was  familiar  with  declaratory 
actions  is  shown  by  Merlin,  who  in  his  Repertoire  universel  *  *  * 
de  jurisprudence  defines  a  ''declaration"  as  "Faction  de  declarer,  de 
faire  connaitre,"  and  mention  is  made  of  the  declaration  of  a  mort- 
gage and  of  legitimacy.  Jactitation  proceedings  were  given  wide 
application  to  various  branches  of  the  law  in  France  up  to  the  enact- 
ment of  the  code  of  civil  procedure  in  1807,  when  this  form  of  pro- 
ceeding failed  of  mention.  Nevertheless,  for  some  years  thereafter 
and  down  to  comparatively  modern  times,  the  French  law  reports 
occasionally  disclose  a  case  in  which  the  plaintiff  asks  the  court  to 
declare  that  the  plaintiff  has  a  right  or  power  or  that  the  defendant 
who  has  threatened  him  with  an  action  or  adverse  claim  has  no  right 
against  him.41  Merlin  states  that  the  civil  code  has  not  abrogated 
the  diffamari  'law.42  The  modern  commentators,  however,43  and 
several  recent  decisions44  take  the  position  that  the  diffamari  pro- 
cedure or  action  de  jactance  ou  provocatoire  is  no  longer  admitted 
in  French  law,  possibly  because  of  a  general  aversion  of  the  French 
law  to  a  determination  of  interests  in  future.  They  give  wide  appli- 
cation to  the  action  for  the  perpetuation  of  testimony,  which  serves 
to  prepare  for  a  future  action  for  coercive  relief;  and  slander  in  all 

«•  The  general  provocatio  was  a  proceeding  in  the  nature  of  a  suit  to  quiet  title  directing  all  persons  adverse- 
to  come  forward  with  their  claims  or  be  barred.  Degenkolb,  op.  cit.  207.  There  is,  of  course,  a  close  relation 
between  this  development  of  the  provocatio  difiamari  and  the  slander  of  title,  against  which  the  old 
Roman  law  had  provided  a  remedy.  But  this  required  more  than  the  threat  of  an  action. 

<°  15y  way  of  the  querela  nullitatis. 

«  See  under  the  heading  "Action  en  justice"  in  1  Fuzier-Herman,  Repertoire  General  Alphabetique  du 
Droit  Francais,  304-305,  the  cases  mentioned  in  sees.  103, 106, 107,  111,  113. 

<*  Repertoire,  s.  V'  Diflamari. 

«  See  1  Glasson,  Precis  de  procedure  civil  (2d  ed.),  227,  228. 

«  Cosnac  v.  Choppin  d'Arnouville  (18X8),  Dalloz,  Jurisp.  Gen.,  417  and  note  thereto;  Longuety  v.  Soci6tfr 
des  ciments  (1898),  Dalloz,  Jurisp.  G<§n.,  420. 


14  THE  DECLARATORY  JUDGMENT. 

its  forms — of  reputation,  of  credit  or  of  title — formerly  a  frequent 
subject  of  declaratory  action,  is  more  easily  the  subject  of  a  success- 
ful action  for  damages  than  it  is  with  us.  One  of  the  familiar  kinds 
of  declaratory  action  in  the  French  code  is  the  proceeding  for  the 
authentication  of  written  instruments,  by  which  the  court  is  asked 
to  declare  whether  the  instrument  is  genuine  or  spurious.45  This  pro- 
cedure was  taken  over  by  the  German  code  of  civil  procedure  of 
1877  ;46  but  it  goes  little  beyond  ascertaining  whether  the  document  is 
genuine  or  forged,  and  serves  principally  as  an  authentic  means  of 
proof.  The  declaration  is,  however,  res  judicata,  and  thus  differs 
from  the  proceeding  to  perpetuate  testimony.  The  French  law 
recognizes  the  function  of  the  courts  to  pronounce  the  nullity  of 
acts  or  transactions  made  void  by  the  substantive  law.  By  statute 
they  have  recently  authorized  the  investigation  of  paternity  by  an 
illegitimate  child;  and  this  results  in  a  declaratory  judgment  of 
paternity. 

With  this,  the  catalogue  of  declaratory  judgments  of  the  modern 
French  law  may  be  said  to  be  exhausted.  France  has  no  general 
statute  authorizing  a  declaratory  judgment.  But  while  the  institu- 
tion has  fallen  into  disuse  in  modern  France,  it  was  from  the  France 
of  the  fourteenth  and  fifteenth  centuries,  with  contributions  from 
ecclesiastical  law,  that  it  found  its  way  into  Scotland,  where  it  has 
developed  and  flourished  and  whence,  in  1852,  it  worked  its  way  into 
English  practice.  Before  taking  up  the  Scotch  development,  how- 
ever, the  law  in  certain  other  countries  will  be  mentioned. 

Germany. — The  German  code  of  civil  procedure  of  1877,  following 
the  practice  of  various  German  States,  adopted  the  declaratory  judg- 
ment, both  affirmative  and  negative,  in  its  widest  application.  Sec- 
tion 231  of  that  code  (256  of  the  revised  code  of  1898)  reads  as  follows: 

An  action  may  be  brought  for  the  declaration  of  the  existence  or  nonexistence  of 
a  legal  relation  (Rechtsverhaltnis)  or  for  the  declaration  of  the  genuineness  or  spurious- 
ness  of  a  legal  instrument,  provided  the  plaintiff  has  a  legal  interest  in  having  the 
legal  relation  or  the  genuineness  or  spuriousness  of  the  instrument  determined  by  a 
judicial  decision.47 

In  addition  the  code  provides  in  sections  633,  638,  and  640  for  a 
judicial  declaration  of  the  existence  or  nonexistence  of  a  marriage  or 
of  the  relation  of  parent  and  child  or  of  paternal  power  of  the  one 
over  the  other. 

There  are  in  addition  certain  special  laws  which  authorize  a  declara- 
tory judgment  in  .particular  cases,  e.  g.,  the  determination  of  the 
relationship  of  dependents  to  a  deceased  person  under, various  acci- 
dent insurance  laws;48  the  determination  of  the  rank  of  conflicting 
creditors  under  the  bankruptcy  act;  and  such  miscellaneous  cases  as 
those  concerning  conflicts  of  patent,  trade-mark,  and  design  privileges, 
and  the  determination  by  a  court  of  what  is  equitable  under  various 
circumstances  when  the  parties  fail  to  agree.49 

«  Glasson,  op.  cit.,  511. 

«•  Sec.  231;  sec.  258  of  the  amended  code  of  1898. 

«  1  Gaupp-Stein.  Kommontar  zur  Civilprozessordnung  (10th  ed.),  578;  vol.  2,  CIS;  SeufTcrt,  Kommentar 
zur  Civilprozessordnung  (7th  ed.),  307  et  seq.;  1  Fetersen,  Die  Civilprozessordnung  (5th  ed.),  492  et  seq.; 
1  Hallwig,  System  des  deutschen  Zivilprozessrechts  (Leipzig,  1912),  280  et  seq.;  Wach,  Handbuch  des 
Zivilprozessrechts  (Berlin,  1885),  13,  52. 

The  Austrian  code  of  1895  contains  in  section  228  the  same  provision  except  that  after  the  words  "legal 
relation"  that  code  interpolates  the  words  "or  rights."  See  Fiirstl.  Dieosterreichische  Civilprozesswsetze, 
mil  Erlauterungen  ( Wien,  1898),  353;  Neumann,  Commsntar  zu  den  Civilprozessgesetzen  vom  1,  August, 
1895  (Wien,  1898),  535  et  seq. 

*  Industrial  Accident  Insurance  Law,  sec.  77;  Agricultural  Ace.  Ins.  Law,  sec.  83;  Building  Ace.  Ins. 
Law,  sec.  18;  Marine  Ace.  Ins.  Law.  sec.  81. 

49  These  miscellaneous  cases  are  fully  set  out  in  the  commentaries  mentioned,  supra,  note  47. 


THE  DECLARATORY  JUDGMENT.  15 

The  German  code  also  makes  provision  in  section  280  for  the 
interlocutory  declaratory  decree  as  follows: 

Until  the  conclusion  of  the  verbal  proceedings  leading  to  a  final  judgment,  the 
plaintiff,  by  widening  the  complaint,  or  the  defendant  by  instituting  a  counter- 
claim, may  ask  that  a  legal  relation  which  in  the  course  of  the  proceedings  became 
the  subject  of  dispute  and  upon  whose  existence  or  nonexistence  the  decision  of  the 
case  depends  in  whole  or  in  part  shall  be  determined  judicially. 

Practically  an  identical  section  (236)  is  incorporated  in  the  Aus- 
trian code  of  1895. 

It  will  be  observed  that  section  256  provides  for  both  the  affirma- 
tive and  the  negative  declaratory  judgment.  The  term  "legal 
relation"  which  is  the  subject  of  declaration  is  used  in  the  Savignyan 
sense  of  "the  relation  determined  by  law  of  one  person  to  another 
person  or  group  or  to  things."  50  The  relation  may  be  personal,  with 
or  without  reference  to  property,  e.  g.,  a  question  of  family  status 
or  membership  in  a  club;51  or  real,  e.  g.,  A's  right  to  an  easement 
over  B's  land.52  It  extends  to  all  jural  relations,  whether  rights, 
privileges,  powers  or  immunities.53  The  relation  need  not  be  a 
direct  one,  e.  g.,  between  creditor  and  debtor;  thus,  it  has  been  held 
that  two  creditors  of  the  same  debtor  have  the  necessary  "legal 
relation"  to  determine  their  respective  claims  to  a  given  fund  of 
the  debtor;  or  a  creditor  and  a  third  person  (partnership),  for  the 
creditor  to  obtain  a  declaration  against  the  partnership  of  his  debtor's 
interest  in  the  partnership.54 

It  will  be  noted  that  the  subject  of  a  declaration  in  Germany  is  a 
"legal  relation"  which,  while  primarily  intended  to  embrace  only 
the  legal  bond  or  association  under  examination,  e.  g.,  debtor  and 
creditor,  must  necessarily  involve  the  jural  relations  composing  the 
bond  or  association  as  a  right,  privilege,  power,  immunity,  etc.; 
whereas  the  English  rule  of  the  Supreme  Court  under  which  declara- 
tory judgments  are  rendered  authorizes,  under  a  literal  interpreta- 
tion, only  a  declaration  of  "right."  The  term  "right,"  as  we  have 
already  observed,  was  undoubtedly  used  in  that  broad  and  juristically 
inaccurate  sense  which  includes  not  only  a  right,  but  also  other  jural 
relations  such  as  privilege,  power  or  immunity  and  their  jural 
correlatives.55 

The  "legal  interest"  on  the  part  of  the  plaintiff  which  is  required 
as  a  condition  precedent  to  the  making  of  a  declaration  may  in 
general  terms  be  described  as  such  an  interest  as  is  to  be  found  in 
the  danger  of  loss  or  of  uncertainty  of  his  rights  or  other  jural  rela- 
tions by  a  failure  of  the  court  to  make  the  declaration.  Before  the 
danger  has  accrued — and  the  existence  of  this  condition  is  for  the 
court  to  determine — the  plaintiff's  "interest"  in  the  declaration  is 
considered  insufficient;  in  other  words,  the  action  is  either  unfounded 
or  premature.  Thus,  you  can  not  have  a  declaration  of  your  right 
or  privilege  against  a  person  who  doesn't  dispute  it,  a  principle 

501  Savigny,  System,  G  ct  seq.:  Windscheid,  op.  cit.  sec.  37.  It  seems  preferable  to  substitute  for  the 
word  "relation"  in  its  present  Savignyan  connotation  of  vinrulum  juris,  the  word  "association"  or  "bond" 
and  to  confine  legal  relations  to  relations  between  persons,  although  the  relations  may  arise  out  of  or  with 
resocct.  to  things. 

r  w  (1882)  8  R.  G.,  3:  (1884)  14  R.  0..  90.    R.  G.  is  the  abbreviation  for  Reiehsgerioht,  the  German  Supreme 
Court  at  Leipzig.    The  names  of  the  parties  are  omitted  from  the  official  reports  of  German  decisions. 

M  Potersen,  op.  cit.  493. 

M  German  Civil  Code,  sec.  194,  209.     Gaupp-Stein,  op.  cit.  607. 

M  (1810)  27  R.  G.,  345;  Gaupp-Stein,  op.  cit.  COS;  or  that  a  certain  right  is  or  is  not  vested  to  a  third  person; 
or  that  the  defendant  has  or  has  not  a  right  against  a  third  person.  (18^8)  41  R.  G.,  345.  See  also  Bahr, 
Entscheidungen  des  Reichsgerichts,  mit  Besprechungen  (Miinchen,  1883),  110. 

"Supra,  p..  10. 


16'  THE  DECLAKATORY   JUDGMENT. 

common  to  all  legal  systems;  a  prospective  heir  can  not  during  the 
lifetime  of  a  testator  sue  for  a  declaration  of  the  validity  or  invalidity 
of  the  will.56  The  German  courts  likewise  assert  a  lack  of  "interest^ 
in  the  declaration  if  the  legal  right  to  be  established  is  already 
ascertainable  in  some  other  form;57  a  conclusion  which  the  English 
courts  also  reach  when  a  special  proceeding  has  been  provided  by 
statute  for  the  determination  of  the  particular  jural  relations  in 
question.58  On  the  other  hand,  a  sufficient  "interest"  is  to  be 
found  in  the  dispute  of  the  plaintiff's  rights,  etc.,  by  one  in  a  position 
to  endanger  them  should  his  claims  be  upheld;  even  the  dispute  of 
present  or  existing  rights,  etc.,  though  their  enjoyment  is  to  be  post- 
poned to  the  future,  dependent  on  the  happening  of  a  condition  or 
the  mere  lapse  of  time,59  will  support  a  declaration.  So,  in  England, 
the  fact  that  a  steamship  company  might  some  time  wish  to  use 
certain  docks  adjoining  those  then  in  use  by  them  was  sufficient  to 
justify  a  declaration  that  the  company  was  not  liable  to  pay  certain 
illegal  charges  assessed  by  the  dock  company  upon  the  occupants  of 
the  docks  in  question.60  A  sufficient "  interest "  in  a  negative  declara- 
tion is  involved  in  the  danger  of  a  criminal  prosecution  or  the  liability 
to  a  penalty;61  or  in  the  desire  to  stop  the  running  of  the  statute  of 
limitations.62 

The  declaration  with  respect  to  the  genuineness  or  spuriousness  of 
a  legal  instrument,  an  institution  adopted  from  the  French  law,  goes 
merely  to  the  determination  of  its  intrinsic  genuineness.  If  its 
validity  or  meaning  depends  upon  proof  of  extrinsic  facts,  its  inter- 
pretation and  construction  will  come  under  the  head  of  disputed  or 
uncertain  "legal  relations."  The  declaration  of  its  genuine  or  spu- 
rious character  is  therefore  of  evidential  value  only,  but  it  binds  the 
parties  and  their  privies  and  has  thus,  as  res  judicata,  an  advantage 
over  the  proceeding  to  perpetuate  testimony.63  The  action  applies  to 
any  kind  of  legal  instrument  capable  of  affording  evidence  of  a  pri- 
vate jural  relation,  and  the  plaintiff  must,  as  in  all  declaratory  judg- 
ments, show  his  "interest"  in  the  declaration  requested.  The  burden 
of  proof  of  genuineness  or  spuriousness  may  rest  either  on  the  plain- 
tiff or  on  the  defendant,  depending  upon  presumptions  created  by 
the  instrument  itself  and  upon  the  particular  matter  to  be  proved. 
The  declaration  of  genuineness  or  spuriousness  of  legal  instruments 
is  deemed  to  be  the  only  exception  to  the  rule  that  the  German  courts 
will  not  make  a  mere  declaration  of  facts.64 

Notwithstanding  the  wide  scope  for  the  declaratory  action  which 
is  opened  by  section  256  of  the  German  code  of  civil  procedure,  it  is 
worthy  of  note  that  probably  less  than  5  per  cent  of  the  decisions 

68  Thus,  the  interest  is  lacking  when  the  dispute  of  the  plaintiff',"  rights  or  an  assertion  of  a  conflictin  g 
claim  emanates  from  a  person  whose  conduct  can  have  no  practical  l.earing  on  the  legal  position  of  the 
plaintiff.  (1889)  24  R.  G.,  405;  (1901)  49  R.  G.,  372;  Gaupp-Stein,  op.  cit.  609.  So  a  partner  before  the 
termination  of  the  liquidation  proceedings  can  not  sue  for  a  declaration  of  disputed  claims;  nor  can  a  regis- 
tered association  sue  dropped  or  resigned  members  for  the  declaration  of  a  possibile  liability  to  share  in 
taxes.  (1882)  8  R.  G.,  72,  74;  Peterson,  op.  cit.  505.  See  to  the  same  effect  the  Scotch  decisions,  infra, 
note  155. 

*'  Gaupp-Stein,  op.  cit.  612,  613  and  cases  there  cited  hi  notes  90-92. 

M  Barraclough  v.  Brown  [1807],  A.  C.  615,  623.  See  also  Magistrates  of  Rothesay  v.  The  Officers  of  State 
(June  22,  1820,  Scotland),  Kac.  Coll.,  quoted  in  (1849)  41  Law  Magazine,  170. 

MThe  question  of  "future"  interests  as  the  sul  ject  of  a  declaratory  judgment  will  be  discussed  in  a 
separate  section.  po«t. 

eo  London  Assn.  of  Shipowners,  etc.,  *.  London  *  India  Docks,  etc.  (C.  A .)  [1892],  3  Ch.,  242. 

*l  (1886)  16  R.  G.,  390;  (1893)  31  R.  G.,  30;  (1909)  70  R.  G.,  371  and  ibid.  397.  See  also  Burghis  v.  Atty- 
Gen.  [1911],  2  Ch.,  139;  Dyson  v.  Atty.  Gen.  (C.  A.)  [1911],  1  K.  B.,  410.  China  Mutual  Steam  Navigation 
Co.  P.  Miclay 11918],  1  K.  B.,  33. 

«2  (1889)  23  R.  G..  346,  348;  (1905)  61  R.  G.,  164,  168. 

63  Petersen,  op.  cit.,  497,  498;  Seuffert,  op.  cit.,  312,  313. 

» Infra. 


THE  DECLARATORY  JUDGMENT.  17 

of  the  supreme  court  are  merely  declaratory.  This  may,  in  part,  be 
due  to  an  early  decision  of  the  supreme  court  in  1881  which  held  that 
a  plaintiff  could  riot  in  effect  take  "two  bites  at  the  cherry" — if  he 
had  available  an  executory  action  (Leistungsklage)  he  could  not  first 
sue  for  a  declaration  of  his  right  (Feststellungsklage)  and  then  bring 
further  actions  for  coercive  relief.  This  would  invite  a  multiplicity 
of  suits.65  This  decision  and  a  few  others  like  it  were  so  severely 
criticized  by  Dr.  Bahr,66  one  of  the  draftsmen  of  the  code,  as  contrary 
to  the  intent  of  the  statute  that  the  supreme  court  later  reversed  its 
position. 

Experience  has  shown  that  after  a  right  has  been  declared,  rarely, 
if  ever,  will  an  action  to  enforce  compliance  therewith  be  necessary. 
Yet  the  practice  appears  to  have  been  considerably  influenced  by 
these  early  decisions;  so  that  a  declaratory  action  is  rarely  brought 
if  an  executory  action  is  available.  Certain  recent  decisions,  more- 
over, while  admitting  that  the  requests  for  a  declaration  and  for  coer- 
cive relief  might  be  combined  in  one  action,  have  taken  the  view  that 
the  declaration  must  be  directed  to  a  different  end  than  the  executory 
decree,  and  that  a  plaintiff  should  not  request  a  declaration  at  all — 
on  the  ground  that  he  has  no  "legal  interest"  in  it — if  he  might  have 
requested  an  executory  judgment.  This  now  has  an  additional  reason, 
for  the  amended  code  of  1898  provides  a  form  of  action  for  executory 
judgments  with  respect  to  obligations  to  become  due  in  the  future, 
such,  for  example,  as  periodically  recurring  payments  of  rent.  While 
such  a  judgment  was  formerly  declaratory  in  its  nature,  requiring  a 
new  action,  if  necessary,  upon  the  former  judgment  to  obtain  exe- 
cution on  the  due  day,  it  is  now  an  executory  judgment  on  which  a 
writ  of  execution  can  immediately  issue  on  the  due  day.67  The  result 
is  that  for  the  most  part  the  declaratory  action  in  Germany  is  in 
practice  confined  to  demands  for  the  enforcement  of  which  an  execu- 
tory action  has  not  yet  accrued,  and  to  actions  for  a  negative  declara- 
tion. The  interesting  thing  to  note  is  that  the  only  case  in  which 
under  the  English  act  of  1852  a  declaration  could  be  made,  namely, 
where  it  might,  if  requested,  have  been  followed  by  coercive  relief,  is 
the  particular  case  in  which  it  could  not  be  sued  for  in  Germany. 

Italy. — Modern  Italy  appears  to  have  abandoned  the  Middle  Age 
declaratory  action,  for  Mattirolo  informs  us  that  the  only  kind  of 
judgment,  apart  from  declarations  of  nullity,  now  rendered  in  Italy 
are  executory  judgments.68 

Spain  and  Spanish  America.— Modern  Spain  and  various  countries 
of  Spanish  America  have  inherited  through  the  Siete  Partidas  69  of 
the  Middle  Ages,  in  the  form  of  the  action  .of  jactancia  (jactitation), 
the  old  Roman  action  of  the  lex  Diffamari  which  enabled  a  prospective 
legal  defendant  threatened  with  an  action  to  appear  as  "equitable" 
plaintiff  with  the  demand  that  his  opponent  be  compelled  to  bring 
his  threatened  action  or  to  keep  silent.  These  provisions  of  the  Siete 
Partidas  have  been  adopted  almost  literally  in  several  Spanish-Ameri- 

«••  (1881)  4  R.  G.,  437. 

»  Bahr,  op.  cit.,  168-170. 

57  T.iese  actions  to  safeguard  "future"  interests  will  be  more  fully  discussed  infra. 

**  1  M  ittirolo,  Tnttato  de  Diritto  Giudiziano  Civile  Italiano  (4th'ed.),  63.  For  a  short  historical  accounij 
of  the  negative  declaratory  action,  containing  a  statement  that  it  was  expressly  omitted  from  the  Italian 
CJ  le  \\ith  the  exception  of  the  creditor's  action  ex  lege  si  contendat.  see  1  Enciclopedia  Giuridica  Italians, 
pt.  V,  s.  V°,  Azione,  1116-1117. 

<*»  Ley  46,  tit.  II,  part.  3a.    See  3  Codigos  Espafloles,  30. 

107908—19 2 


18  THE  DECLAEATOHY  JUDGMENT. 

can  codes  70  and  a  recent  decision  of  the  Supreme  Court  of  Spain  71 
affirms  the  modern  survival  of  the  old  action  of  jactancia  authorized 
by  law  46  of  the  Partidas,  and  denies  its  implied  repeal  by  article  1976 
of  the  civil  code.  As  expressed  in  the  Bolivian  code,  whence  they 
were  directly  taken  by  the  codes  of  Uruguay  and  Argentina,  these 
provisions  read: 

In  case  any  person  boasts  or  asserts  against  another  matters  which  cause  the  latter 
to  lose  good  reputation  or  honor,  the  offended  person  may  require  the  boaster  to  bring 
an  action  or  to  keep  silence. 

When  a  person  who  must  go  on  a  journey  by  land  or  sea  asserts  that  another  is  await- 
ing the  moment  of  his  dt  parture  to  bring  some  action  against  him  he  may  ask  that  the 
latter  be  compelled  to  bring  his  action.  (Art.  191.) 

Prof.  Gallinal  of  Uruguay,  an  authority  on  civil  procedure,  is  of 
the  opinion  that  the  action  of  jactancia  has  outlived  its  usefulness 
and  should  be  eliminated  from  the  codes  of  Latin-America  as  it  has 
already  been  in  Italy  and  other  States.72  He  suggests  replacing  it 
with  a  general  action  for  a  declaratio  juris  or  declaratory  judgment.73 

Scotland. — The  connecting  link  between  the  declaratory  action  of 
the  Middle  Ages  and  modern  English  law  is  to  be  found  in  the  law 
of  Scotland.  Just  when  the  declaratoiy  action  was  adopted  in  Scot- 
land it  is  difficult  to  say.  The  modern  works  on  Scotch  practice 
disclose  no  statute  or  rule  of  court  which  expressly  authorizes  or 
recognizes  the  so-called  "  action  of  declarator."  Inferences  as  to  its 
origin  in  Scotland  have  been  indulged.  Lord  Stair  states  74  that 
"  declarators  of  right  proceeded  of  old  by  brieve  of  right  which  is  now 
out  of  use."  A  writer  in  the  Law  Magazine  75  points  out  that  the 
brieve  was  replaced  by  the  summons  in  1532,  when  the  Scotch  court 
of  session  was  established.  That  court  was  approved  by  the  Scotch 
parliament  hi  1537  and  Morrison's  Dictionary  discloses  several  cases 
of  "declarator,"  the  earliest  of  which  is  dated  July  16,  1541. 76  The 
institution  has  had  a  history  in  Scotland,  therefore,  of  nearly  four 
hundred  years.  As  to  its  sources,  it  has  been  suggseted  that  these 
are  to  be  found  (1)  in  the  brieve  of  right,  which  was  worded  like  the 
summons  of  declarator;  (2)  in  the  forms  adopted  by  the  old  episcopal 
courts  for  the  administration  of  the  ecclesiastical  law,  notably  the 
declarations  of  legitimacy,  marriage,  and  other  matters  of  status; 
the  form  of  their  judgment  ran  "  pronunciamus  decernimus  et  declara- 
mus";  and  (3)  in  the  forms  of  the  French  law,  according  to  which 
the  court  of  session  originally  administered  justice,  and  which  prob- 
ably contributed,  by  way  of  example,  to  the  employment  of  the 
declaratory  action.77 

The  declaratory  action  is  defined  by  Scotch  institutional  writers 
to  be  one  "in  which  the  right  of  the  pursuer  [plaintiff]  is  craved  to 
be  declared,  but  nothing  is  claimed  to  be  done  by  the  defender 

"Bolivia,  Code  of  civil  procedure,  arts.  189r  191;  Chile,  arts.  258-202,  278;  Argentina  (Buenos  Aires. 
Capital),  arts.  425-432:  Uruguay,  arts.  259,  2t.O,  8^3-872.  Similar  provisions  are  to  be  found  in  the  codes  of 
Panama,  Costa  Rica,  Mexic-o  (federal  District),  and  of  other  States  of  Spanish- America. 

N  Decision  of  Sept.  27,  1912,  Tribunal  Supremo,  No.  1K3  in  (1012),  42  Jurisprudence  civil,  n.  s.,  1089. 

n  Rafael  Gallinal,  Estudios  sobre  el  Codigo  de  Procedimiento  Civil  (Montevideo,  1»07),  105  et  seq. 

"  The  Spanish  nomenclature  may  easily  mislead  the  casual  reader  in  this  matter.  The  jt;icio  ordinario 
declarative  is  the  usual  form  of  action  leading  to  a  judgment  which  may  be  executed.  The  juk  io  ejecutivo 
is  the  summary  form  of  action  authorized  in  certain  cases  of  indebtedness  on  a  comn  ercial  instrurr.er.t, 
provisional  execution  beginning  at  once  by  the  issue  of  a  writ  of  attachment  against  the  debtor  who  has 
only  a  brief  time,  generally  a  few  days,  to  put  in  a  defense  and  stay  final  execution. 

74  4  Institutions' of  the  Law  of  Scotland  (More's  ed.  1832),  4,  1. 

"  (1S49)  41  Law  Magazine,  179. 

'«  Ibid.  179. 

77  (1849)  41  Law  Magazine,  180 


THE  DECLARATORY  JUDGMENT.  19 

[defendant]."  78  Lord  Stair  informs  us,  further,  that  "such  actions 
may  be  pursued  for  instructing  or  clearing  any  kind  of  right  relating 
'  to  liberty,  dominion,  or  obligation";  and  that  "there  is  no  right  but 
is  capable  of  declarator."  79 

Among  the  numerous  forms  of  declarator,  which  may  be  either 
affirmative  or  negative,  disclosed  by  the  Scotch  forms  80  are  declara- 
tions of  marriage  and  of  nullity  of  marriage,81  of  legitimacy,  of 
bastardy,82  of  putting  to  silence,  the  common  form  of  negative  declara- 
tory action,  by  which  the  defendant  is  by  summons  given  a  limited 
time  to  bring  forward  his  action  or  have  a  decree  of  perpetual  silence 
pronounced  against  him; 83  of  property  interests  of  all  kinds,  including 
title,  easements  and  servitudes,  liens  and  burdens  on  the  land;84  of 
the  so-called  "nonentry  duties;"  85of  the  so-called  "expiry  of  the 
legal"  term  of  redemption; 8e  of  the  forfeiture  of  rights; 87  of  property 
in  or  right  of  succession  to  movables;  of  trust,  validity  of  trust  deed, 
power  to  revoke  a  trust  deed,  or  that  trust  instruments  are  ultra 
vires;88  of  •  partnership ; 89  of  proving  the  tenor,90  and  other  miscel- 
laneous actions,  including  those  rescissory  actions  which  merely 
declare  a  deed  or  other  instrument  null  and  void,  without  any  declara- 
tion or  judgment  against  the  defendant.91 

The  Scotch  law  recognizes  three  forms  of  the  declaratory  action: 
(1)  the  pure  declarator  alone;  (2)  the  declarator  with  prayer  for 
possessory  or  petitory  relief  ("conclusions");  and  (3)  the  "declara- 
tory adjudication."  The  first  is  confined  purely  to  the  declaration  of 
jural  relations.  The  law  of  Scotland,  instead  of  making  such  declara- 
tion optional,  makes  it  in  certain  cases  a  condition  precedent  before 
an  action  for  coercive  relief  can  follow.  So  in  cases  of  statutory  for- 
feitures, proving  the  tenor  of  a  lost  instrument,  foreclosing  the  equity 
of  redemption,  relying  on  title  based  upon  prescriptive  possession, 
seeking  to  show  that  facts  and  circumstances  prove  or  disprove  a 
marriage  or  legitimacy  where  that  conclusion  is  denied;  partition  of 
heritable  property  among  heirs;  and  in  other  cases,  the  request  for  a 
declaration  must  precede  the  request  for  further  relief.92  It  is  com- 
mon practice,  as  in  England,  to  combine  the  request  for  affirmative 
relief  with  one  for  a  declaration,  and  often  where  the  former  is 
denied,  the  latter  may  still  be  granted.  The  commentators  assert  that 

78  4  Stair,  3, 47:  4  Erskine,  Principles  of  the  Law  of  Scotland  (20th  ed.),  1, 25, 46.    See  also  Mackay,  Manual 
of  Practice  in  the  Court  of  Session  (Edinburgh,  1893),  175. 

79  4  Stair,  3,  47:  ibid.,  39,  15. 

so  See  4  Scots  Style  Book,  s.  V,  Declarator. 

81  Fraser,  Husband  and  Wife  (2d  ed.),  1238,  1244. 

88  The  action  to  declare  a  child  a  bastard  can  not  be  brought  in  English  law.    Yool  v.  Ewing  [1904]  Irish 
Ch.,  434,  445. 

w  This  procedure  is  also  well  known  in  RomamDutch  law  as  practiced  in  South  Africa.  See  Morice. 
English  and  Roman-Dutch  Law  (2d  ed.),  377;  Voet,  Bk.  XLVII,  tit.  10;  De  Villicrs,  The  Rom;>n  and 
Roman-Dutch  Law  of  Injuries  (Cape  Town,  1899),  143:  4  Nathan,  Common  Law  of  South  Africa  (Grahains- 
town,  1907),  Chap.  XVIII.  On  the  Scotch  action  of  nutting  to  silence,  see  Fraser,  op.  cit.,  1244. 

8)  1  Bell,  Commentaries  on  the  Law  of  Scotland  (7th  ed.  by  McLaren),  785. 

*>  Declaration  of  the  landlord's  ''right"  of  reentry  for  failure  to  pay  rent  or  other  dues.  It  is  a  technical 
actian  described  in  1  Bell,  op.  cit.,  22. 

86  Tlu's  is  the  action  by  which  a  creditor  who  holds  security  in  the  form  of  an  interest  in  land  may  ask  the 
court  to  declare  that,  10  years  having  expired  since  the  due  date  of  the  debt,  he  is  entitled  to  an  irredeemable 
title  to  the  property,  the  debtor  having  allowed  the  10  years  to  expire  during  which  he  had  a  legal  power 
of  redemption.    Trie  creditor  calls  on  the  debtor  to  exercise  his  power  of  redemption,  otherwise  to  have  it 
judicially  declared  as  foreclosed.    This  is  one  of  the  cases  in  which  the  declarator  is  essential — not  merely 
optional— to  the  acquisition  of  an  irredeemable  title  by  the  creditor.    See  Ormiston  v.  Hill  (1809,  Scot.) 
Fac.  Coll.,  155,  and  1  Bell,  op.  cit.  743. 

87  Mackay,  Manual,  op.  cit.  79,  378.    The  declaration  of  the  forfeiture  of  a  lease  is  known  as  a  declaration 
of "  irritancy."    See  ease  of  Wylie  v.  Heritable  Securities  Invest.  Assn.  (1871),  10  M.,  253. 

89  2  Bell,  op.  eit.  380,  note  3.' 

89  2  Bell,  op.  cit.  502,  and  cases  there  cited. 

90  That  is,  proving  the  tenor  of  lost  or  destrayed  instruments  by  which  a  jural  relation  is  required  to  be 
established.    See  Lord  Lovat  v.  Fraser  (1845),  8  D.,  310;  Erskine,  op.  cit.  542-544. 

n  Bell,  Dictionarv  and  Digest  of  the  Law  of  Scotland  (7th  ed.  by  Watson),  291;  Erskine,  op.  cit.  542. 
81  Mackay,  op.  cit.  78,  79,  374-379. 


20  THE  DECLARATORY  JUDGMENT. 

"wherever  a  right  upon  which  an  action  is  to  be  founded  is  not  clear 
as  to  its  existence  or  extent,  a  declarator  is  proper,  and  sometimes 
necessary,  before  an  action  can  proceed  to  enforce  the  right." B3 
The  "declaratory  adjudication"  is  a  method  of  vesting  a  legal  title 
in  the  person  who  has  the  beneficial  interest.94 

Strictly  speaking,  while  a  declaration  of  title  is  of  course  made,  the 
judgment  here,  as  in  some  of  the  cases  mentioned  above,  is  more  than 
declaratory.  It  constitutes  the  certification  or  vesting  of  a  new  jural 
relation,  and  is,  therefore,  investitive  in  its  nature,  whereas  the  declar- 
atory judgment  proper  merely  declares  a  jural  relation  which  is 
already  in  existence,  the  determination  having  retrospective  force  to 
the  period  when  the  right  or  other  juralr  elation  commenced.  There 
is,  for  example,  a  sharp  distinction  between  the  declaration  of  the 
nullity  of  a  "marriage"  which  never  really  was  a  marriage  at  all,  as 
was  contemplated  by  the  negative  jactitation  proceeding  in  England, 
and  the  declaration  of  the  nullity  of  a  marriage  voidable  at  the  option 
of  one  of  the  parties.  The  former  judgment  is  declaratory,  the  latter 
investitive.  Closer  analysis  of  the  numerous  actions  which  in  Scot- 
land are  called  declaratory  reveals  that  many  of  them  fall  within  the 
class  of  what  we  would  call  investitive,  and  the  conclusion  can  not 
be  avoided  that  it  is  only  in  the  unlimited  scope  given  to  the  negative 
declaratory  action,  in  the  willingness  to  declare  facts  and  "future 
interests,"  95  and  in  such  special  proceedings  as  the  declaration  of 
bastardy  that  Scotch  law  affords  greater  opportunity  than  the  English 
law  of  the  present  day  for  the  declaratory  action. 

As  in  other  systems  of  law,  the  exercise  of  the  power  to  render  a 
declaratory  judgment  is  discretionary  with  the  court;  the  plaintiff 
must  show  a  substantial  interest  in  the  declaration;  the  jural  rela- 
tion he  asserts  must  be  disputed; 98  the  declaration  of  rights,  etc.,  to 
be  enjoyed  in  the  future  must  serve  some  useful  purpose  in  settling 
disputed  or  doubtful  legal  relations,  so  that  it  will  not  be  made  if  it 
can  not  constitute  res  judicata.97  Yet  recent  decisions  show  a  greater 
disposition  to  declare  contingent  rights  by  anticipation,  provided 
there  is  some  one  to  oppose  the  declaration.98  While  the  Scotch 
courts  like  other  courts  affirm  that  they  will  not  declare  abstract 
propositions  nor  the  meaning  of  statutes  99  unless  directly  affecting 
private  jural  relations,100  they  are  more  readily  disposed  to  declare 
mere  facts,  when  serving  some  useful  purpose,  than  are  the  courts  of 
Germany  or  England.101 

England. — England  owes  the  advantages  it  enjoys  under  the 
declaratory  action  to  the  agitation  of  Lord  Brougham,  begun  in 
1828.  In  a  notable  speech  delivered  on  February  7  of  that  year  in 
the  House  of  Commons  on  the  state  of  the  courts  of  common  law,102 
he  pointed  out  the  great  benefits  enjoyed  by  Scotland  in  enabling 
persons  who  apprehend  future  litigation  to  proceed  by  way  of  a 

93  Bell,  Principles,  see.  1995;  Mackay,  Manual,  378. 

9«  Dalziell  v.  Dalziell  (1756),  16  M.,  204;  1  Bell,  Commentaries,  751. 

«  Infra. 

98  See  Magistrates  of  Edinburgh  ».  Warrender  (1863),  1  M.,  887,  by  Lord  Neaves. 

97  Thus,  where  a  declaration  was  asked  of  the  power  of  a  plaintiff  under  a  trust  deed  to  give  certain  sums 
by  will  provided  he  had  no  issue,  the  declaration  was  declined  because  it  would  not  bind  unborn  children. 
Harvey  v.  Harvey's  Trustees  (1860),  22  D.,  1310,  1326. 

*>  Chaplin's  Trustees  v.  Hoile  (1890),  28  Sc.  L.  Rep.,  51;  Falconer  Stewart  v.  Wilkies  (1892)  29  Sc.  L^ 
Rep.  534. 

99  Todd  ».  Higginbotham  (1854)  16  D.  794. 

100  Leith  Police  Commissioners  v.  Campbell  (1866).  5  M.,  247. 
if"  Infra. 

M»  18  Hansard  (2d  ser.,  1828),  col.  127,  col.  179. 


THE  DECLARATORY  JUDGMENT.  21 

declaratory  action  to  have  their  rights  determined,  and  he  mentioned 
its  particular  application  to  doubtful  or  disputed  interests  in  prop- 
erty. He  introduced  bills  for  the  adoption  of  the  practice  in  1843, 
1844,  1846,  1854  and  again  in  1857,  the  last  of  which  resulted  in  the 
legitimacy  declaration  act,  1858.103  He  obtained  a  very  considerable 
following,  particularly  among  the  judges,  and  on  numerous  occa- 
sions in  the  House  of  Lords  successive  chancellors,  including  Lord 
Thurlow,  Lord  Loughborough,  Lord  Eldon  and  others  among  their 
successors,  called  attention  to  the  merits  of  the  Scotch  action  of 
declarator.,  Speaking  with  reference  to  the  negative  declaratory 
action  where  the  plaintiff  has  no  affirmative  cause  of  action,  a  pro- 
ceeding not  possible  in  England  until  1883,  Lord  Brougham  in  1846 
in  delivering  his  opinion  in  the  House  of  Lords  in  the  case  of  Earl 
of  Mansfield  v.  Stewart 104  said : 

I  can  not  close  my  observations  in  this  case  without  once  more  expressing  my 
great  envy,  as  an  English  lawyer,  of  the  Scotch  jurisprudence,  and  of  these  who  enjoy, 
under  it,  the  security  and  the  various  facilities  and  conveniences  which  they  have 
from  that  most  beneficial  and  most  admirably  contrived  form  of  proceeding  called 
a  declaratory  action.  Here,  you  must  wait  till  a  party  chooses  to  bring  you  into 
court;  here,  you  must  wait  till  possibly  your  evidence  is  gone;  here,  you  have  no 
means  whatever,  in  ninety-nine  cases  out  of  a  hundred,  of  obtaining  the  great  benefit 
of  this  proceeding.105 

Lord  Brougham  lived  to  see  his  proposed  reform  partially  adopted 
in  an  amendment  to  the  chancery  procedure  act  of  1852,  to  which 
we  shall  recur  presently,  and  in  the  legitimacy  declaration  act,  1858. 
By  that  act  it  was  provided  that  any  natural-born  British  subject,  or 
any  person  whose  right  to  be  deemed  a  natural-born  subject  depends 
wholly  or  in  part  on  the  validity  of  a  marriage,  being  domiciled  in 
England,  may  apply  by  petition  to  the  court  for  matrimonial  causes 
praying  for  a  decree  declaring  that  his  marriage  was  or  is  a  valid 
marriage;  and  the  court  is  to  have  jurisdiction  to  hear  and  decide  the 
application,  and  to  make  its  decree  declaratory  of  the  validity  or 
invalidity  of  the  marriage.106 

Mention  has  already  been  made  of  the  act  of  1850  107  which  enabled 
persons  interested  in  questions  cognizable  in  the  court  of  chancery 
to  state  special  cases  for  the  opinion  of  the  court  as  to  "the  construc- 
tion of  any  act  of  parliament,  will,  deed,  or  other  instrument  in  writ- 
ing, or  any  article,  clause,  matter  or  thing  therein  contained,  or  as  to 
the  title  or  evidence  of  title  to  any  real  or  personal  estate  contracted 
to  be  sold  or  otherwise  dealt  with";  and  enabled  the  court 

to  determine  the  questions  raised  therein  or  any  of  them,  and  by  decree  to  declare 
its  opinion  thereon,  and  so  far  as  the  case  shall  admit  of  the  same,  upon  the  right 
involved  therein,  without  proceeding  to  administer  any  relief  consequent  upon  such 
declaration;  and  that  every  such  declaration  of  the  said  Court  contained  in  any  such 
decree  shall  have  the  same  force  and  effect  as  such  declaration  would  have  had 
if  contained  in  a  decree  made  in  a  suit  between  the  same  parties  instituted 
by  bill;  Provided,  *  *  *  that  if  the  court  shall  be  of  opinion  that  the  questions 
raised  *  *  *  cannot  properly  be  decided  upon  such  case,  the  said  court  may 
refuse  to  decide  the  same. 

As  an  incident  to  regular  actions,  the  court  of  chancery  had  occa- 
sionally made  declarations,  notably  in  the  construction  of  wills  and 

W3  21  and  22  Viet.,  ch.  93. 

W«  5  Bell,  139,  160. 

w  The  object  of  this  suit  was  to  obtain  a  declaration  that  the  vendor  could  convey  a  good  title  to  Lord 
Mansfield,  the  vendee,  who  threatened  to  withhold  payment  on  the  ground  that  the  title  was  in  doubt. 

w«  A  person  not  domiciled  in  England  cannot,  therefore,  obtain  a  declaration  of  the  validity  of  his  mar- 
riage, although  it  was  celebrated  in  "England.  Countess  De  Gasquet  James  v.  Duke  of  Mecklenburg- 
Schwerin  (19141,  p.  53,  70. 

107  Sii'Vrd,  p.  7.  An  act  to  diminish  the  delay  and  expense  of  proceedings  in  the  high  court  of  chancery 
in  England.  13  and  14  Viet.,  ch.  35,  sees.  1, 14. 


22  THE  DECLARATORY  JUDGMENT. 

trust  settlements.  This  power  was  apparently  vastly  enlarged  by  the 
chancery  procedure  act,  1852,  section  50,  which  provided  that — 

No  suit  .  .  .  shall  ba  open  to  obJ3ction  on  the  ground  that  a  merely  declaratory 
dscrae  or  ordar  is  sought  thereby,  and  it  shall  be  lawful  for  the  Court  to  make  binding 
declarations  of  right  without  granting  consequential  relief. 

Judicial  construction,  however,  greatly  narrowed  these  important 
grants  of  power.  Vice  Chancellor  Wood  in  1853  confined  the  author- 
ity given  by  these  acts  practically  to  cases  "where  it  should  appear 
to  be  necessary  for  the  administration  of  an  estate  or  as  incidental 
to  coercive  relief";108  and  Chancellor  Turner  in  1856  stated  that 
section  50  did  not  extend  the — • 

cas?s  in  which  declarations  of  right  may  be  made,  but  merely  enables  the  court  to 
djclara  rights  without  following  up  the  declaration  by  the  directions  which,  under 
the  old  practice,  have  been  necessarily  consequent  upon  them.109 

And  the  section  was  further  restricted  by  the  traditional  aversion 
of  the  courts  to  making  findings  as  to  the  enjoyment  of  rights  in  the 
future  or  as  to  those  which  depend  upon  a  contingency.110 

The  power  was  further  narrowed  by  the  construction  that  the 
courts  could  make  a  declaration  only  as  an  incident  to  coercive 
relief  or  where  there  was  a  "right"  to  consequential  relief  for  which 
the  plaintiff  had  merely  chosen  not  to  ask.  Where  there  was  no 
"right"  to  consequential  relief,  no  declaration  would  be  made*111 
As  this  proceeding  arose  before  the  Judicature  Acts,  it  is  possible  to 
comprehend  that  it  may  have  appeared  to  a  court  of  equity  as  some- 
thing of  an  anomaly  to  make  a  declaration  as  to  a  legal  right  when 
not  preliminary  or  incidental  to  any  equitable  relief;  and  that  it 
may  have  appeared  inexpedient  to  determine  a  question  concerning 
a  jural  relation  which  had  not  actually  arisen  and  might  never  arise. 
This  view  of  the  court's  power  inevitably  made  it  impossible  to 
institute  a  proceeding  for  a  negative  declaration  by  which  a  plaintiff 
who  fears  that  the  defendant  will  bring  an  action  against  him  can 
ask  quia  timet  by  way  of  anticipatory  defense,  so  to  speak,  for  a 
declaration  that  the  defendant  has  no  just  claim  against  him.112 

But  with  the  reforms  instituted  by  the  Judicature  Act  of  1873  the 
ground  was  laid  for  the  adoption  of  new  rules  of  court.  Order  XXV, 
rule  5,  of  the  Supreme  Court  Rules  of  1883  113  now  paves  the  way  for 
a  wide  application  of  the  declaratory  judgment.  It  provides: 

No  action  or  proceeding  shall  be  open  to  objection,  on  the  ground  that  a  merely 
declaratory  judgment  is  sought  thereby,  and  the  Court  may  make  binding  declara- 
tions of  right  whether  any  consequential  relief  is  or  could  be  claimed,  or  not. 

Although  this  language  would  seem  to  make  it  clear  that  the  plain- 
tiff need  no  longer  have  a  cause  of  action  entitling  him  to  affirmative 
relief — the  only  purpose  which  appears  to  have  been  intended  by  the 
insertion  of  the  words  "or  not," — it  was  nevertheless  only  in  1915 114 
that  the  court  of  appeal  fully  admitted  that  a  plaintiff  may  ask  the 
court  not  only  affirmatively  to  declare  his  right  or  power,  but  also 
negatively  to  declare  the  no-right  or  disability  of  his  opponent 

"«  Garlick  v.  Lawson  (1853),  10  Hare,  App.  XIV. 

><»  Lady  Lan<*dale  v.  Bri<™s  (1856);  8  De  G.  M.  and  G.,  391,  427. 

0  T,adv  Lan-»dile  v.  Bri<™s,  supra;  Briiht  v.  Tyndall  (1876),  4  Ch.  D.,  189,  196. 

1  R33ke  v.  Lord  Kensington  (1856),  2  K.  &  J.,  753,  760. 

2  Jackson  v.  Turnley  (1853),  1  Drew,  617,  627;  Rooke  v.  Lord  Kensington,  supra. 

3  7  Statutory  Rules  and  Orders,  51. 

«  Guaranty  Trust  Co. «'.  Ilannay  (C.  A.)  [1915],  2  K.  B.  536.    The  decision  was  by  two  judges  against 
i.    See  supra,  p.  9. 


THE  DECLARATORY  JUDGMENT.  23 

defendant  (i.  e.,  the  privilege  or  immunity  of  the  plaintiff).  As 
late  as  1906  the  court  had  expressed  the  opinion  115  that  only  a 
plaintiff  who  had  an  affirmative  cause  of  action  could  request  a 
declaration.  It  is  also  to  be  noted  that  the  power  to  make  dec- 
larations under  Order  XXV,  rule  5,  is  most  freely  exercised  in  the 
Chancery  Division,  much  less  frequently  in  the  King's  Bench  division, 
and  not  at  all  in  the  Probate  Division,  to  which  it  has  been  held  not 
to  apply.118 

Furthermore,  the  amended  rules  of  1893  have  introduced  Order 
LIV,  A:117 

In  any  Division  of  the  High  Court,  any  person  claiming  to  be  interested  under  a 
deed,  will,  or  other  instrument,  may  apply  by  originating  summons  for  the  deter- 
mination of  any  question  of  construction  arising  under  the  instrument,  and  for  a 
declaration  of  the  rights  of  the  persons  interested. 

The  exercise  of  the  power  is  expressly  made  discretionary.  This 
is  in  addition  to  the  power  long  exercised  by  courts  of  equity  in 
advising  and  directing  trustees  in  their  powers,  duties  and  respon- 
sibilities, and  the  determination  of  any  question  arising  in  the 
administration  of  a  trust  "affecting  the  rights  or  interests  of  the 

Eersons  claiming  to  be  creditor,  devisee,  legatee,  next  of  kin,  or 
eir-at-law,  or  cestui  que  trust'-'  or  affecting  other  matters.118 
It  will  have  been  observed  that  Order  LIV,  A,  covers  the  con- 
struction of  wills,  deeds,  contracts  and  other  written  instruments; 
and  the  reports  of  the  Chancery  Division  indicate  that  more  than  half 
the  declaratory  judgments  rendered  arise  in  the  construction  of  wills 
or  deeds  of  trust  under  this  order.119  The  simplicity  of  the  new  pro- 
cedure when  contrasted  with  the  old  tedious  and  expensive  litigation 
which  any  dissatisfied  member  of  a  family  could  render  necessary 
may  be  envied  by  us.  New  Jersey  appears  to  be  the  only  State  which 
has  directly  profited  by  the  English  example  in  this  respect,120 
although  a  few  States  permit  bills  to  construe  a  will. 

Since  the  "forms  of  action"  have  been  abolished  in  England,  and 
a  plaintiff  needs  now  in  his  writ  or  pleadings  merely  to  state  the  facts 
on  which  he  relies,  the  declaration  of  "rights"  under  Order  XXV, 
rule  5,  and  LIV,  A,  is  obtainable  without  technicality  and  inex- 
pensively. So  successful  in  improving  Ihe  administration  of  justice 
has  the  declaratory  action  been  that  Order  XXV  has  been  adopted 
verbatim  in  the  codes  of  procedure  or  rules  of  court  of  Australia, 
New  Zealand,  Queensland,  Victoria  and  other  Australian  states;121 
of  Ontario,  British  Columbia,  Manitoba  and  other  Canadian 
Provinces;  and  of  India  and  Ceylon. 

India. — Tn  India,  where  the  declaratory  action  has  been  extensively 
used,  Act  VIII  of  1859,  section  15,  embodied  the  provisions  of  section 

•  Sea  North  Eastern  Marine  Engineering  Co.  v.  Leeds  Forge  Co.  [1906],  1  Ch.  324;  (C.  A.)  [1906],  2  Ch.  498. 
5  De  Gasquet  James  v.  Duke  of  Mecklenburg-Schwerin  [1914],  p.,  53,  71. 

7  Statutory  Rules  and  Orders  (1893),  552. 

8  Order  Ly ,  7  Statutory  Rules  and  Orders  Revised,  126. 

9  The  originating  summons  is  exceedingly  simple.    It  reads,  after  the  caption: 

"Let  B  of in  the  county  of within  eight  days  after  service  of  this  summons  on  him,  inclusive 

of  the  day  of  such  service,  cause  an  appearance  to  be  entered  for  him  to  this  summons,  which  is  issued  upon 

the  application  of  A  of in  the  county  of who  claims  to  be  [state  the  nature  of  the  claim]  for  the 

determination  of  the  following  questions:    [State  the  questions.] " 

120  The  New  Jersey  act  respecting  the  Court  of  Chancery,  suppl.,  approved  Mar.  30,  1915,  Public  Laws 
1915,  ch.  116,  p.  185,  sec.  7,  reads  as  follows: 

"  S'ibject  to  rules,  any  person  claiming  a  right  cognizable  in  a  court  of  equity,  under  a  deed,  will  or  other 
written  instrument,  may  apply  for  the  determination  thereof,  in  so  far  as  the  same  affects  such  right,  and 
for  a  da^laration  of  the  rights  of  the  persons  interested."  See  In  re  Ungaro's  Will  (1917,  N.  J.  Ch.).  102 
Atl.,  244. 

121  In  New  South  Wales  they  appear  to  have  retained  without  change  the  form  of  section  f,0  of  the  Chancery 
Act  of  1852. 


24  THE  DECLAEATOEY  JUDGMENT. 

50  of  the  Chancery  Act  of  1852.  This  section  was  repealed  by  Chapter 
VI  of  the  Specific  Relief  act  of  1877  (Act  I  of  1877,  sec.  42)  which, 
while  making  it  unnecessary  for  the  plaintiff  to  be  entitled  to  any 
coercive  relief,  hence  admitting  the  negative  declaratory  action,  bars 
the  courts  from  making  declaratory  decrees  only  jn  cases  where  the 
plaintiff,  being  able  to  seek  coercive  relief,  omits  to  request  it.  This 
legislation,  therefore,  adopts  the  early  construction  of  the  German 
supreme  court  and  the  present  German  practice  requiring  a  plaintiff 
to  seek  his  strongest  remedy,  and  overlooks  the  advantages  which  a 
friendly  suit  enjoys  over  a  hostile  litigation  in  determining  one's 
legal  position,  in  his  valuable  commentary  on  the  Specific  Relief  Act, 
Collett  mentions  m  as  the  prerequisites  of  the  declaratory  decree: 
1.  There  must  be  a  present  existing  interest,  however  distant  the 
actual  enjoyment  may  be;  2.  There  must  be  some  present  danger  or 
detriment  to  be  averted  by  the  declaration;  and  3.  A  man  entitled  to 
sue  for  an  executory  decree  .can  not  seek  only  a  declaratory  decree.123 
Section  283  of  the  civil  procedure  code  of  1882  also  enables  a  person 
claiming  an  interest  in  property  attached  under  an  execution  of  iudg- 

•  •  •  i    i  •     i      i    •       •  •  •  ^i 

ment  to  institute  a  suit  to  establish  his  interest  in  the  property,  which 
suit  acts  as  a  stay  of  execution.  A  similar  proceeding  is  provided  in 
Ceylon.124 

United  States, — While  the  declaratory  judgment,  eo  nomine,  has 
not  yet  been  adopted  in  the  United  States,  it  is  proper  to  observe  that 
many  of  our  States  have  without  formal  recognition  admitted  its 
efficacy  in  various  departments  of  the  law.  A  careful  search  for 
instances  of  its  application  would  probably  disclose  many  cases.  But 
its  employment  is  spasmodic  and  desultory.  The  few  examples  that 
we  shall  cite  will  serve  merely  to  show  that  our  special  necessities  have 
occasioned  recourse  to  the  declaratory  judgment  without  conscious 
adoption,  and  that  its  f9rmal  admission  into  our  practice  would  be 
merely  an  extension  to  a  wider  field  of  an  institution  whose  efficacy 
we  have  already  admitted  and  which  is  even  more  thoroughly  attested 
by  a  prolonged  practice  of  over  thirty-five  years  in  England  and  of 
many  more  years  in  other  countries. 

Among  the  few  instances  that  we  shall  notice  in  the  United  States, 
the  majority  indicate  the  adaptability  of  the  declaratory  judgment  to 
the  construction  of  written  instruments  and  to  the  determination  of 
conflicting  titles  to  real  property.  Attention  has  already  been  called 
to  the  New  Jersey  statute  of  1915,  based  on  the  English  Order  L1V,  A, 
according  to  which  the  chancery  court  may  construe  any  will,  deed, 
or  other  written  instrument  without -giving  further  relief.125  Illinois 
and  some  other  States  also  admit  bills  in  chancery  for  the  construction 
of  wills,  notwithstanding  that  no  trust  or  questions  of  trust  or  other 
questions  are  involved  therein.126 

122  Collett,  The  Law  of  Specific  Relief  in  India  (Calcutta,  1882),  224. 

123  On  the  Indian  practice  in  making  declaratory  decrees  see  1  Stokes,  Anglo-Indian  Codes  (Oxford,  1892), 
934;  Broughton,  Notes  of  Cases  decided  upon  points  of  Civil  Procedure  (Calcutta,  1884),  93;  and  Sarkar,  The 
Civil  Procedure  Code  (Act  XIV  of  1882),  sees.  11,  283,  and  the  cases  there  digested.    Under  the  proviso  that 
the  executory  decree  must  be  claimed  if  feasible,  the  court  will  not  deny  the  declaratory  action  unless 
"  satisfied  bevond  all  doubt"  that  the  pluntiif  ought  to  seek  "further  relief  and  yet  has  not  done  so."    Aisa 
Siddika  v.  Bidhu  Sekhar  Banerjee  (1913),  17  Calcutta  L.  I.,  675. 

12<  1  Pereira,  Institutes  of  the  Laws  of  Ceylon  (Colombo,  1901),  339.  Such  a  proceeding  in  the  form  of  trial 
of  title  by  shsril's  jury  is  fairly  common  in  the  Uniled  States.  The  purpose,  however,  is  to  protect  the 
shsriT.  See  Sellers  v.  Thomas  (1900),  185  111.  384  and  Puterbaugh,  Common  Law  Pleading  and  Practice 
(9th  ed.),  1127. 

12&  Public  Laws  191C,  ch.  116,  ssc.  7,  p.  185.  In  re  Ungaro's  Will  (1917,  N.  J.  Ch.),  102  Atl.,  244.  In  this 
section  the  declaratory  judgment,  as  such,  is  expressly  recognized. 

126rluri's  IllLiois  Statutes,  1911,  c.  22  (Cflincsry),  sec.  50,  p.  166.  See  Barton  v.  Barton  (1918,  111.),  119 
N.  E.,  320. 


THE  DECLAEATORY  JUDGMENT.  25 

The  declaratory  judgment  in  substance,  although  not  in  name,  has 
proved  particularly  effective  for  the  determination  of  disputed  or 
•doubtful  questions  of  title  to  realty.  In  England  and  some  other 
countries,  since  the  abolition  of  real  actions,  this  has  become  the 
regular  method  of  trying  title.  We  have  long  been  familiar  with  the 
•equitable  action  for  the  removal  of  a  cloud  from  title;  and  this  action, 
so  far  as  it  does  not  demand  the  destruction  of  instruments  or  of  other 
obstructing  clouds,  but  merely  a  declaration  of  the  plaintiff's  title, 
is  in  effect  a  declaratory  action.  But  the  artificial  restrictions  with 
which  this  equitable  remedy  is  encumbered  have  led  to  the  enactment 
of  statutes  which  remove  many  of  these  limitations:  and  some  of  them 
permit  not  merely  a  person  in  possession  but  any  claimant  of  an 
equitable  or  a  legal  interest  in  the  land  (and  in  some  States  even  in 
personal  property)  to  institute  an  action  for  the  trial  of  the  title.127 
Thus,  a  recent  Connecticut  statute  provides: 

An  action  may  be  brought  by  any  person  claiming  *  *  *  an  interest  in  *  *  * 
real  or  personal  property  *  *  *  against  any  person  who  may  claim  *  *  *  any 
interest  *  *  *  adverse  to  the  plaintiff  *  *  *  for  the  purpose  of  determining 
such  adverse  *  *  *  interest  *  *  -  *  and  to  clear  up  all  doubts  and  disputes, 
and  to  quiet  and  settle  the  title  to  the  same.128 

Somewhat  analogous  to  these  actions  are  the  proceedings  by  a 
person  in  possession  for  the  statutory  period  against  a  person  claim- 
ing under  a  record  title  to  have  the  latter's  claim  declared  void  and- 
to  confiim  his  own  title.129 

Our  law  is  also  familiar  with  the  action  by  which  an  equitable 
claimant  can  obtain  a  judgment  impressing  a  trust  upon  the  legal 
title  in  his  favor — i.  e.,  a  judgment  declaring  the  plaintiff  to  be  cestui, 
and  therefore  entitled  in  equity  to  property  to  which  another  has  legal 
title;130  or  a  judgment  declaring  a  supposed  trust  to  be  invalid.131  In 
fact,  actions  are  frequent  for  the  declaration  of  the  nullity  of  instru- 
ments or  transactions,  although  such  declarations  are  usually  inci- 
dental to  further  relief.132  When  brought  by  prospective  legal 
defendants  to  anticipate  their  defenses  under  void  or  voidable  instri- 
ments  they  are  declaratory  actions.  In  this  category  are  act  ons  by 
insurance  companies  to  declare  the  invalidity  of  policies  obtained  by 
fraud,  sometimes  before  any  loss  has  occurred;  or  by  those  prospec- 
tivoly  liable  under  negotiable  instruments.133  On  the  whole,  the 
courts  are  reluctant  to  make  such  declarations,  and  only  in  excep- 

127  The  statutes  are  cited  in  6  Pomeroy,  Equity  Jurisprudence  (3d  ed.)  sec.  735.    See  also  Wehrman  v. 
Conklin  (1894),  155  U.  S.,  314,  15  Sup.  Ct.,  129. 

128  Pub.  Acts,  1915,  ch.  174,  sec.  1.    See  Ackerman  v.  Union  &  New  Haven  Trust  Co.  (1915),  90  Conn., 
63;  96  Atl.,  149;  (1917),  91  Conn. ,500,  506;  100  Atl.,22,  whore  the  court,  Case.  .1.,  was  most  reluctant  in 
admitting  the  fact  that  this  statute  was  in  effect  analogous  to  the  English  Order  XXV,  rule  5.    The  case 
involved  the  construction  of  a  will.    See  also  Heaver  ».  Napier  (1918,  Minn.),  166  N.  W..  187;  Coel  ».  Glos 
(1908),  232  111.,  142;  83  N.  E.,  523— action  by  vendee  under  a  contract  of  sale  against  a  third  person  claimant 
of  title. 

129  See  the  cases  cited  in  6  Pomeroy,  op.  cit.  sec.  730,  n.  17.    In  many  States  such  actions  can  not  be  brought. 
They  can  not  be  brought  in  Canada.    Miller  v.  Robertson  (1904),  35  Can.  Sup.  Ct.,  80;  Reaume'  v.  CotS 
(1916,  A.  D.),  35  Ont.  L.  Rep.,  303.    Equitable  actions  to  establish  and  confirm  title  in  case  of  lost  records 
and  under  other  circumstances  are  admitted  in  Wisconsin,  Laws  of  1878,  ch.  252,  Statutes,  1911,  sec.  661  h; 
and  in  Illinois,  Hurd's  Statutes,  1911,  ch.  22,  p.  167. 

i'-o  Uonohoe  v.  Rogers  (1914),  168  Cal.,  700:  144  Pac.,  958.  See  the  interesting  case  of  Porten  v.  Peterson 
(1918,  Minn.),  166  N.  W.,  183,  where  a  vendee  not  yet  entitled  to  specific  performance  because  all  the 
installments  of  the  purchase  price  had  not  yet  been  paid,  the  defendant  vendor  having  repudiated  the 
contract  by  refusing  to  receive  further  installments,  nevertheless  obtained  a  judgment  declaring  his  equit- 
able title. 

™  Scheibner  v.  Schoibncr  (1917,  Mich.),  165  N.  W.,  660. 

'•>2  See  the  case  of  Slingerland  v.  Slingerland  (1910),  109  Minn.,  407.  410,  411;  124  N.  W.,  19,  where  a  woman 
sued  for  a  declaration  that  a  contract  with  her  husband  for  the  release  of  her  dower  was  void  because  ob- 
tained by  fraud.  The  action  was  held  not  premature. 

133  Commercial  Mutual  Life  Insurance  Co.  v.  McLoon  (1867,  Mass.),  14  Allen,  351;  Globe  Mutual  Life 
Insurance  Co.  v.  Reals  (1879),  79  N.  Y.,  202;  see  also  the  English  cases  of  Brooking  v.  Maudslay,  Son  & 
Field  (1888),  38  Ch.  D.,  636,  and  Honour  v.  Equitable  Life  Ass.  Soc.  [1900],  1  Ch.,  852,  in  which  the  declara- 
tions were  refused. 


26  THE  DECLARATORY  JUDGMENT. 

tional  cases  will  they  relieve  the  petitioner  by  anticipation  from  the  • 
usual  duty  of  setting  up  his  legal  defenses  when  sued.134 
By  a  Wisconsin  statute 

when  the  validity  of  any  marriage  shall  be  denied  or  doubted  by  either  of  the  parties, 
the  other  party  may  commence  an  action  to  affirm  the  marriage,  and  the  judgment  in 
such  action  shall  declare  such  marriage  valid  or  annul  the  same  and  be  conclusive 
upon  all  persons  concerned.135 

So  far  as  this  judgment  declares  the  validity  of  a  marriage,  it  is  purely 
declaratory,  and  its  purpose  the  exact  opposite  of  the  old  English 
"jactitation"  proceeding.  So  far  as  it  declares  the  marriage  null,  pro- 
vided it  was  merely  voidable  and  not  void  ab.initio,  it  is  not  purely 
declaratory  but  rather  investitive,  or,  more  accurately,  divestitive  in 
its  nature. 

Other  illustrations  are  to  be  found  in  statutes  authorizing  judg- 
ments proving  the  tenor  of  lost  instruments  or  proving  the  validity, 
when  contested,  of  instruments  to  be  recorded.138  Judgments  declar- 
ing statutes  unconstitutional  are  declaratory,  though  they  are  usually 
accompanied  by  some  specific  relief,  and  the  classic  example  of  the 
trustee's  request  for  advice  and  directions  under  a  trust  instrument  is 
illustrative  of  this  form  of  action.  The  examples  given  above  will 
suffice  to  show  that  the  formal  adoption  of  the  declaratory  judgment 
in  our  practice,  far  from  constituting  a  radical  innovation  in  our  legal 
institutions,  would  merely  serve  to  extend  the  application  of  remedies 
already  employed. 

II. 

It  is  now  our  purpose  to  undertake  an  analysis  of  numerous  declar- 
atory actions  and  judgments,  with  a  view  to  determine  the  scope  of 
and  the  limitations  upon  this  useful  form  of  procedure.  An  exami- 
nation of  declaratory  judgments  in  the  various  jurisdictions  in  which 
the  institution  has  been  adopted  reveals  a  remarkable  similarity  of 
fundamental  principles  characterizing  the  practice  of  making  judicial 
declarations.  As  our  interest  is  confined  to  the  practice,  emphasis 
will  be  laid  not  upon  the  decision  itself  as  a  matter  of  substantive 
law,  but  rather  upon  the  type  of  question  submitted  for  declaratory 
judgment,  the  cases  in  which  such  judgments  are  rendered,  and  the 
limitations  placed  by  the  courts  upon  the  exercise  of  the  power  to 
make  declarations  01  rights  and  of  other  jural.  relations. 

COMBINATION   OF   ACTIONS. 

It  has  already  been  noted  that  under  the  practice  in  England  it  is 
usual  to  combine  with  the  request  for  a  declaration  a  request  for  an 
injunction  or  for  damages  where  coercive  relief  is  obtainable  and 
desired.  Under  the  act  of  1852,  this  was  the  only  kind  of  case  in 
which  a  declaration  could  be  made,  although  the  plaintiff  was  not 
required  to  ask  for  coercive  relief.  Under  the  rules  of  1883,  however, 
the  limitation  that  coercive  relief  must  be  obtainable  has  been  re- 

13<  These  actions  are  in  \eflect  requests  for  negative  declarations.  An  instance  of  a  prospective  legal 
defendant  instituting  a  proceeding  to  compel  the  prospective  plaintiff  to  sue  is  afforded  by  the  unusual 
statute  of  New  Mexico  of  March  11,  1903.  ch.  23,  sec.  2,  which  enables  a  corporation,  anticipating  a  suit 
against  it  by  a  person  who  has  sustained  a  personal  injury,  to  compel  that  person  to  file  his  complaint. 
So,  in  prize  law,  the  owner  of  a  captured  vessel  or  goods  can  compel  the  captor  to  institute  prize  proceed- 
ings. The  Zamora  (H.  L.)  [1916],  2  A.  C..  77. 

155  Wisconsin  Statutes,  sec.  3Z52.    See  Kitzman  v.  Kitzman  et  al.  (1918,  Minn.),  166  N.  W.,  792. 

«•  E.  g.,  California  Statutes  1905,  p.  604;  Civil  Code,  sec.  1203. 


THE  DECLARATORY  JUDGMENT.  27 

moved,  so  that  declaratory  actions  may  now  be  instituted  in  which 
no  injunction  or  damages  could  be  obtained. 

Yet  there  is  a  decided  advantage  in  combining  the  request  for 
coercive  relief,  when  desired,  with  a  request  for  a  declaration.  It 
may  easily  happen,  for  example,  that  the  injunction  requested  is  not 
granted  on  the  merits;  and  in  our  American  practice  the  bill  would 
then  be  dismissed  with  costs,  for  the  denial  01  the  injunction  leaves 
no  alternative.  In  the  English  and  Scotch  practice,  however,  the 
additional  request  for  a  declaration  does  leave  an  alternative,  and  it 
is  constantly  employed  by  the  courts.  By  declaring  what  are  the 
jural  relations  of  the  parties,  the  necessity  for  further  litigation  is 
usually  obviated  and  all  the  purposes  of  coercive  relief  will  have  been 
served.  For  example,  the  P.  &  O.  Steamship  Co.  brought  an  action 
for  a  declaration  and  injunction  against  a  dock  company  to  have 
declared  illegal  and  to  enjoin  the  enforcement  of  certain  regulations 
and  charges  in  respect  to  certain  docks  which  the  steamship  company 
might  at  some  time  need.  The  steamship  company  during  the  trial 
evidently  decided  to  abandon  the  prayer  for  the  injunction,  but  the 
proceedings  continued  and  the  court  made  a  declaration,  as  requested, 
that  the  regulations  were  illegal;  and  this  declaration  served  all  the 
purposes  of  the  steamship  company.137  So  the  court  may,  in  the 
exercise  of  its  equitable  discretion,  refuse  an  injunction  where  it  be- 
lieves the  interests  of  justice  do  not  require  it,  and  grant  a  requested 
declaration  in  its  stead.  Thus,  in  a  case  where  the  sewer  of  a  munic- 
ipal corporation  emptied  into  that  of  another  under  an  agreement 
held  ultra  vires,  the  court  considered  the  great  inconvenience  of 
suddenly  .closing  a  sewer  in  daily  use  and  refused  the  injunction,  but 
declared  the  plaintiff's  right  to  relief  with  leave  to  apply  for  an  in- 
junction after  a  reasonable  time,  should  the  defendants  fail  to  make 
other  arrangements.138  In  another  case,  while  declaring  a  certain  act 
•  a  trespass,  the  court  refused  to  enjoin  it  as  too  trival  for  an  injunc- 
tion.139 The  request  for  a  declaration  may  also  be  used,  alone  or 
with  a  prayer  for  further  relief,  in  a  counterclaim. 

The  practice  mentioned  above  of  requesting  a  declaration  as  an 
alternative  remedy  is  explained  by  the  fact  that  if  not  claimed,  it 
will  not  as  a  rule  be  granted.  There  is,  therefore,  much  to  gain  and 
nothing  to  lose  by  asking  it.  In  one  important  case,  an  exception  to 
the  general  rule,  a  declaration  was  made  although  not  requested.140 
In  this  case  a  mining  company  had  by  its  negligence  caused  the  water 
in  a  canal  to  become  polluted  and  to  subside  to  such  an  extent  that 
an  adjoining  mill  owner  was  damaged  by  the  escape  of  water  into  his 
mill.  Inasmuch  as  certain  remedial  procedure  had  been  provided  for 
by  statute,  the  court  refused  an  injunction  but  put  its  finding  in  the 
form  of  a  declaration  of  the  defendant's  liability  for  the  damage 
caused,  both  present  and  future.  Nor  will  a  court,  as  a  rule,  make 
a  declaration  different  from  the  one  requested.  The  declaratory 
judgment  is  not  an  equitable  remedy  141  which  the  courts  can  adjust 
or  grant  conditionally  according  to  the  "  equities"  —  to  the  justice  of 


137  London  Assn.  of  Shipowners,  etc.  v.  London  &  India  Docks,  etc.  (C.  A.)  [1892],  3  Ch.,  242.  See  also 
Attv.  Gen.  v.  Merthyr  Tydfll  Union  (C.  A.)  [1900],  1  Ch.,  fc!6. 

M  Islington  Vestry  P.  Hornsey  U.  C.  (C.  A.)  [1900],  1  Ch.,  695.  See  also  Grainger  v.  Order  of  Canadian 
Home  Circles  (1914),  31  Ont.  T,.  Rep.,  461. 

'•^  Llandudno  U.  D.  C.  P.  Woods  [1899],  2  Ch.,  705. 

no  Evans  v.  Man  ' 

i«  See  Farwell, 


U.  D.  C.  P.  Woods  [1899],  2  Ch.,  705. 

anchester,  Sheffield  <t  I  i-'eolnshire  R.  R.  (1RS7)  .36  Ch.  D.,  626. 
l,  L.  J.,  in  Chapman  v.  Michaelson  (C.  A.)  [1909],  1  Ch.,  238,  243. 


28  THE  DECLARATORY  JUDGMENT. 

the  case.142  Unless  put  in  the  form  of  a  general  question  on  originat- 
ing summons  for  the  court's  determination,  it  is  either  categorically 
granted  or  refused.  A  complaint,  therefore,  frequently  contains  a 
request  for  several  declarations,  some  of  which  may  be  granted  and 
others  refused.  The  Indian  courts,  while  putting  these  rules  into 
practice,143  have  claimed  the  privilege  of  altering  a  declaration  re- 
quested to  suit  the  circumstances.144 

It  will  be  recalled  that  under  the  Indian  specific  relief  act,  1877, 
a  declaration  can  not  be  granted  in  a  case  in  which  the  plaintiff  could 
have  requested  further  relief  by  way  of  injunction,145  damages,  or 
claim  to  recover  possession  of  property.148  This  resembles  the  practice 
of  the  German  supreme  court  and  is  of  interest  as  representing  the 
antithesis  of  the  former  English  practice  under  the  act  of  1852,  this 
being  the  only  kind  of  case  in  which  a  declaration  could  be  made. 

While  the  German  practice  now  admits  in  principle  the  possibility 
of  combining  the  declaratory  with  the  executory  action,  the  fact  is 
that  this  is  done  only  when  by  the  declaratory  action  a  distinct  end 
is  to  be  achieved;  for  example,  in  cases  of  continuing  injury,  the 
plaintiff  may  seek  damages  for  the  injury  that  has  occurred  and  a 
declaration  of  liability  for  the  injury  that  may  occur  in  the  future  ;147 
or  a  plaintiff  may  sue  for  a  declaration  of  the  defendant's  liability 
(technically,  duty),  although  the  injury  is  complete,  if  he  is  unable  at 
the  moment  accurately  to  estimate  his  damages.148  Yet  it  is  the  rule 
that  when  the  executory  action  is  feasible,  a  plaintiff  will  not  be 
allowed  to  combine  it  with  a  declaratory  action,  nor  indeed  does  he 
in  practice  sue  for  a  declaration  at  all.  In  such  cases,  the  courts  have 
said  that  the  plaintiff  had  no  '  'legal  interest "  in  the  declaration.  Cer- 
tain exceptions  to  this  rule  have  been  made  in  the  case  of  the  admin- 
istration of  estates  or  where  a  defendant  has  avowed  his  willingness  to 
abide  by  and  carry  out  a  declaratory  judgment.  But  such  cases  are 
exceptional,  and  the  necessity  for  exception  diminishes  in  view  of  the 
valuable  procedure  for  obtaining  an  executory  judgment  to  cover  obli- 
gations accruing  in  the  future  provided  by  sections  257-259  of  the 
German  code  of  civil  procedure  enacted  in  1898.  This  action  for 
future  performance  (kiinf tige  Leistung)  is  possible  when  the  plaintiff's 
claim  is  based  on  an  executed  contract  or  transaction  in  which  the 
plaintiff,  but  not  the  defendant,  has  fully  performed.  It  covers 
actions : 

1.  For  money  loaned  due  at  a  future  date. 

2.  For  the  surrender  of  a  leasehold  estate  or  of  a  chattel  at  the 
termination  of  the  lease  or  term  of  hiring. 

3.  For  installments  of  payments  [or  other  acts]  falling  due  at 
periodic  times  in  the  future,  provided  judgment  has  been  obtained 
on  an  installment  already  past  due. 

4.  Where  the  debtor  without  justification  or  claim  of  right  shows 
that  he  intends  to  evade  or  refuse  performance  when  due.149 

142  A  possible  exception  may  be  found  in  the  ease  of  Honour  v.  Equitable  Life  Ass.  Soc.  [1900],  1  Ch.,  852, 
in  which  the  declaration  was  refused  on  the  defendants  undertaking  not  to  avail  themselves  of  a  certain 
defense,  although  it  is  not  at  all  clear  that  the  court  made  this  a  condition. 

i«  Nobin  f.  Nilkamal (1916), 25 Calcutta L.J., 537, 545;  Hemendraw.Upendra(1915),  431.  L.R.,  Calcutta, 
743,  766. 

«  Abhoy  v.  Kelly  (1880),  5  1.  L.  R.,  Calcutta,  949. 

«  Nauji  v.  Umatul  (1912),  15  Calcutta  L.  J..  724.    See  ajso  supra,  p.  29. 

<6  Jibunti  v.  Shibnath  (1883),  8  I.  L.  R.,  Calcutta,  819. 

«  (1889),  23  R.  G.,  346,  348:  (1898),  41  R.  G.,  369,  372. 

48  Gaupp-Stein,  op.  cit.  613,  n.  100.  Indeed,  in  such  cases  the  declaratory  action  must  be  Drought  if 
the  plaintifi  wishes  to  stop  the  running  of  the  statute  of  limitations.  (1913),  83  R.  G.,  358. 

us  Hellwig,  op.  cit.,  sec.  103a,  pp.  267-269.     Petersen,  op.  cit.,  506-507. 


THE  DECLAKATOKY  JUDGMENT.  29 

The  judgment  obtained  in  such  cases  may  be  executed  when  the 
obligation  falls  due.  These  are  declaratory  judgments  only  in  the 
sense  that  they  can  not  be  executed  when  rendered,  for  they  are  execu- 
table without  further  proceedings  on  the  arrival  of  the  due  day. 
Case  4  differs  from  the  pure  declaratory  judgment  not  only  in  this 
respect,  but  because  it  requires  an  unjustified  or  malicious  repudiation ; 
if  founded  upon  a  claim  of  "right,"  only  a  declaratory  judgment  with- 
out executory  force  would  be  obtainable.  Our  action  for  anticipatory 
breach  would  probably  cover  most  of  the  cases  under  division  4. 
Prior  to  1898,  the  obligation  being  not  yet  due  and  therefore  no  execu- 
tory action  being  possible,  such  actions  had  to  be  directed  toward  a 
declaratory  judgment. 

The  German  practice  then  seems  to  be  that  when  an  executory 
action  would  give  a  complete  remedy,  the  declaratory  action  can  not 
be  brought.150  But  this,  as  we  have  seen,  is  confined  to  those  cases 
where  the  declaration  is  necessarily  involved  in  the  executory  judg- 
ment, and  pursues  no  independent  end.  Thus,  in  a  suit  for  a  declara- 
tion that  a  contract  for  the  sale  of  land  in  Southwest  Africa  was 
void  because  of  noncompliance  with  formal  requirements,  combined 
with  a  demand  for  the  return  of  the  purchase  price,  it  was  held  that 
under  the  circumstances  the  demand  for  the  declaration  was  inde- 
pendent and  not  necessarily  involved  in  the  demand  for  restitution  of 
the  money  and  could  be  maintained.151 

A  declaratory  action  may  during  the  course  of  the  proceedings 
merge  into  an  executory  action,  either  by  the  complete  accrual  of  the 
title  to  such  an  action  or  by  the  proceeding  of  the  defendant.  Indeed, 
the  code  specifically  admits  an  amendment  in  the  form  of  the  action; 
or  rather,  more  accurately,  an  amendment  in  the  prayer  for  judg- 
ment.152 In  a  recent  interesting  case,  the  plaintiff  put  on  the  market  a 
patented  washing  powder.  The  defendant  in  using  it  sustained  severe 
injury  to  her  eyes,  and  threatened  plaintiff  with  suit.  The  plaintiff 
thereupon  brought  a  negative  form  of  declaratory  action  to  establish 
her  nonliability  (technically  nonduty  to  pay,  i.  e.,  privilege)  for 
defendant's  injuries.  During  the  pendency  of  this  declaratory  action, 
defendant  sued  for  damages.  The  court  held  that  the  executory  ac- 
tion for  damages  merged  the  claim  for  a  declaration,  and  while  the 
"lee-al  interest"  in  the  declaration  was  present  when  the  action  was 
instituted,  it  was  not  present  at  the  time  of  judgment,  when  it  was 


necessary.153 


PURPOSE. 


The  purpose  of  the  declaratory  action  is  the  security  desired  by  the 
plaintiff  against  the  uncertainty  of  his  rights  and  other  jural  relations 
due  to  their  being  questioned  by  the  defendant  or  to  the  assertion  of 
conflicting  claims,  or  merely  to  the  existence  of  records  ostensibly  to 
the  advantage  of  the  defendant  which  of  themselves  place  in  uncer- 
tainty the  plaintiff's  legal  position.  There  need  be  no  threat  to  violate 
the  plaintiff's  rights,  etc.;154  the  mere  proof  ol  those  operative  facts 

I"  (1905),  01  R.  G.,  242,  244. 

»s»  (1910),  73  R.  G.,  272. 

>«  (1W)  71  R.  O.,  72.    So  defenses  may  be  changed:  (1909)  72  R.  G.,  143. 

lft3  (1909)  71  R.  G.,  68.  It  is  sufficient,  if  present  at  the  true  of  judgment,  even  if  not  present  when  the 
action  was  initiated.  Warneyer,  Rechtsprechung  des  Reirhspenchts  (1909)  p.  295,  No.  325.  But  see 
Hoffman  v.  McCloy  (1917),  38  Out.  L.  Rep.,  440,  450,  to  the  effect  that  it  must  te  present  when  the  action  is 
instituted. 

i*«  See  Hopkinson  v.  Mortimer,  Harley  &  Co.  (Ltd.)  [1917],  1  Ch.,  646.  But  the  right,  privilege,  etc., 
must  he  in  some  danger  of  attack.  Toronto  Ry.  Co.  v.  City  of  Toronto  (1906),  13  Ont.  L.  Rep.,  532  . 


30  THE  DECLARATORY  JUDGMENT. 

which  either  of  themselves  or  in  the  hands  of  the  defendant  endanger 
the  security  of  the  plaintiff's  rights,  etc.,  suffices.  It  is  for  the  court 
to  determine  whether  the  dispute,  danger,  or  uncertainty  was  of  such 
a  nature,  either  by  reason  of  its  source  or  its  extent,  as  to  justify  the 
making  of  the  declaration  asked.  Some  danger  to  the  plaintiff's 
rights,  etc.,  must  exist,  and  as  may  be  inferred,  the  danger  or  threat 
of  attack  must  move  either  from  the  defendant  or  from  records  within 
his  control  or  by  which  he  is  ostensibly  benefited.  Mention  has  been 
made  of  Justice  Bailhache's  remark  that  the  declaratory  judgment  is 
not  intended  merely  to  enable  persons  to  "sleep  o'nights,  and  it  has 
been  said  on  more  than  one  occasion  that  the  courts  will  not  confirm 
by  declaration  a  title  which  is  perfectly  clear  and  not  yet  attacked.155 
In  other  words,  it  is  not  the  function  of  the  declaratory  judgment  to 
establish  truisms  that  no  one  disputes. 

As  a  measure  of  preventive  justice,  the  declaratory  judgment 
probably  has  its  greatest  efficacy.  It  is  designed  to  enable  parties  to 
ascertain  and  establish  their  legal  relations,  so  as  to  conduct  them- 
selves accordingly,  and  thus  to  avoid  the  necessity  of  future  litigation. 

It  is  further  designed  to  enable  trustees,  executors,  receivers,  and 
others  who  act  hi  a  fiduciary  capacity  and  whose  proper  execution  of 
such  trusts  is  a  matter  of  public  as  well  as  private  interest,  to  obtain 
authoritative  advice  and  guidance  in  the  performance  of  their  duties.156 
Recently  in  England,  the  controller  of  enemy  property  under  the 
trading  with  the  enemy  acts,  1914-1916,  has  been  authorized  to  ask 
the  court  for  advice  as  to  how  he  is  to  deal  with  creditors  of  the  con- 
cerns under  his  control,  how  to  distribute  the  assets  in  liquidation,  and 
what  his  duties  are  in  particular  cases.157  Somewhat  related  to  this 
function  of  courts  is  the  duty  occasionally  created  by  statute  of 
answering  stated  questions  for  the  benefit  of  administrative  officers.158 
The  opinions  given  by  the  Court  of  Claims  for  the  benefit  of  executive 
officers  and  of  the  supreme  courts  in  some  seven  of  our  States  for  the 
benefit  of  the  legislature  or  governor  on  "important  questions  of 
law"  or  of  "constitutional  law"159  bear  some  resemblance  to  declara- 

IM  Earl  of  Galloway  v.  Garlies  (1838),  16  S.,  1212;  Magistrates  of  Edinburgh  v.  Warrender  (18C3),  1  M., 
887;  Earl  of  Dysart  v.  Hammerton  [1914],  1  Ch.  822;  (II.  L.)  [1916]  1  A.  C.,  57. 

118  For  trustees  in  England.  seeTrustee  Act,  1893,  sees.  25, 35, 38.  and  Order  LV,  rule  3,  of  the  Supreme  Court 
Rules;  In  re  Moxon  [19101.  2  Ch.,  595;  Re  Hollins  (1917,  Ch.),  118  L.  T.,  1C;  In  re  Forster  (1917,  N.  S.  W.),  17 
St.  Rep.,  42.  Executors,  in  re  Saillard  [1917]  2  Ch.  140;  Receivers,  in  re.  New  Chinese  Antimony  Co.  (Ltd.) 
[1910]  2  Ch.  115;  Williams  v.  Dominion  Trust  Co.  (1916)  23  Br.  Col.  461.  Whenever  persons  are  officers  of 
the  court,  like  receivers,  they  may  in  all  jurisdictions  ask  for  directions.  The  direction  given  is  not  merely 
advisory,  but  a  binding  judgment. 

™  In  re  W.  Ilagclberg  Akt.  G.  [191C]  2  Ch.  503;  in  re  Fr.  Meyers  Sohn  (Ltd.)  (C.  A.)  [1918]  1  Ch.  169;  in 
re  Dieckmann  [1918]  1  Ch.  331;  Re  Francke  and  Rasch  (1918,  Ch.)  118  L.  T.  211. 

1;*  Thus,  the  registrar  of  titles  in  New  South  Wales  can  ask  the  Supreme  Court  for  an  opinion  under  sec.  23 
of  the  Real  Property  Act  of!900.  No.  25,  as  to  which  of  two  persons  is  entitled  to  priority  of  registration.  See 
in  re  Broughton  (1917,  N.  S.  W.)  17  St.  Rep.  29;  The  Minister  of  Lands  v.  Yates  (1917,  N.  S.  W.)  ibid.  114. 
See  also,  section  113  of  the  Alberta  Land  Titles  Act.  In  Scotland,  municipal  authorities  have  asked  a 
declaration  of  their  jurisdiction  under  a  Crown  charter.  Magistrates  of  Edinburgh  v.  Officers  of  State  (1825) 
4  S.  319.  Judge  Cardozo  of  the  New  York  Court  of  Appeals  in  Sell-Insurer's  Association  and  N.  Y.  Central 
R.  R.  Co.  v.  State  Industrial  Commission,  decided  May  28. 1918  (119  N.  E.  1027),  considered  this  a  nonjudicial 
duty  which  the  legislature  has  no  power  to  impose  on  the  courts.  He  held  that  the  legislature  by  providing 
that  the  State  industrial  commission  might  certify  to  the  Appellate  Division  "questions  of  law 'involved  in 
its  decisions,"  intended  only  such  questions  as  we're  involved  in  an  actual  controversy  with  adverse  parties 
litigant,  not  questions  which  the  commission  might  formulate  with  a  view  of  being  enlightened  with  respect 
to  its  powers.  This  limits  the  declaration  to  the  determination  of  questions  of  law  certified  to  appellate 
courts  by  inferior  tribunals,  a  very  common  practice.  In  the  recent  case  of  Dreiser  t>.  John  Lane  Co.  (1918, 
N.  Y.  A  pp.  Div.),  171  N.  Y.,  Sup.',  605,  the  appellate  division  reaffirmed  the  court's  incompetence  to  render 
advisory  opinions  to  private  pirties,  rwrticularlv  on  a  question  of  fact. 

«•  Such  a  provision  is  to  be  found  in  the  constitutions^  Massachusetts,  New  Hampshire,  Maine,  Rhode 
Island,  Florida,  Colorado,  and  South  Dakota:  also  in  statutes  of  Canada.and  its  Provinces.  See  an  exhaus- 
tive study  on  advisory  opinions  by  Albert  R.  Kllin^wood  of  Colorado  College,  published  recently  (New 
York,  1918),  undsr  the  title  Departmsntal  Cooperation  in  State  Government;  and  Thayer,  Legal  Essays 
(Boston,  19881,  42  et  seq.,  Hall,  Cases  on  Constitutional  Law  (St.  Paul,  1913),  44-45,  and  authorities  cited 
in  Judge  Cardozo's  opinion,  supra  note  158. 


THE  DECLARATORY  JUDGMENT.  31 

tory  judgments,  but  embody  the  important  qualification  that  they  are 
merely  advisory  in  their  nature  and  are  in  no  sense  binding  judgments. 

The  purpose  for  which  a  declaration  is  desired  is  one  of  the  con- 
siderations entering  into  the  exercise  of  the  court's  discretion  in  ren- 
dering a  declaratory  judgment.  The  equitable  nature  of  the  relief160, 
is  evident  in  the  fact  that  the  court  may  inquire  into  the  purpose  for 
which  the  declaration  is  asked,  and  must  be  convinced  that  its  judg- 
ment will  serve  a  practical  end  in  quieting  or  stabilizing  uncertain 
or  disputed  jural  relations  either  as  to  present  obligations  or  prospec- 
tively.161  Thus,  if  the  purpose  of  the  action  is  merely  to  get  a  court's 
opinion  on  a  hypothetical  question  which  is  not  disputed  or  which 
requires  no  determination  in  order  to  settle  uncertain  relations  or  con- 
flicting claims,  no  declaration  will  be  made.102  The  German  Supreme 
Court  has  expressed  this  idea  by  saying  that  the  courts  were  not 
intended  for  the  legal  instruction  of  parties  on  abstract  or  doubtful 
questions  of  law  or  on  general  legal  principles  in  which  the  parties  had 
no  present  practical  interest  for  the  adjustment  of  their  relations.163 
But  this  limitation  has  been  carried  quite  far,  so  that  declarations  have 
been  denied  even  when  the  parties  had  a  certain  interest  in  questions 
concerning  the  validity  of  an  ordinance,  the  ^xistence  of  a  custom,  the 
scope  and  intent  of  an  administrative  rule  concerning  particular  kinds 
of  business,  the  principles  according  to  which  an  account  should  be 
balanced,  etc.164  In  other  words,  the  declaration  in  Germany  is  con- 
fined to  a  very  concrete  point,  and  should  it  require  the  determimation 
of  a  broad  question,  e.  g.,  the  validity  of  an  ordinance,  the  declaration 
may  be  declined  on  the  ground  that  the  party  had  not  a  sufficient 
"legal  interest."  Indeed,  it  is  somewhat  difficult  to  systematize  the 
cases  in  which  a  declaratory  judgment  may  be  obtained  in  Germany, 
because  of  the  fact  that  in  many  cases  in  which  declarations  are  denied 
in  the  exercise  of  the  court's  discretion,  the  ground  alleged  is  that  the 
party  had  no  "legal  interest"  in  the  declaration,  although  his  practical 
interest  is  obvious. 

One  well-recognized  purpose  of  the  declaratory  action  in  Germany 
is  to  stop  the  running  of  the  statute  of  limitations,  and  indeed  in  cer- 
tain cases  where  the  action  for  damages  could  not  be  brought  because 
of  lack  of  information  to  establish  the  damage,  the  preliminary  decla- 
ratory action  to  establish  the  liability 'has  been  held  essential  to  inter- 
rupt the  running  of  the  statute.165 

In  England,  declaratory  judgments  have  been  rendered  for  the 
information  of  a  foreign  court  on  a  question  of  English  law  or  where 

1W  Although  Farwell,  L.  J.,  in  Chapman  v.  Michaelson  (C.  A.)  [1909],  1  Ch.,  238,  243,  denied  that  it  was 
strictly  "equitable  relief." 

161  So  the  Ontario  Supreme  Court  refused  to  declare  a  licensing  ordinance  invalid,  because  before  the 
time  came  for  the  issue  of  another  set  of  licenses,  a  new  ordinance  might  have  been  passed.    Bourgon  v. 
Township  of  Cumberland  (1910),  22  Ont.  L.  Rep.,  256.    So  no  declaration  was  made  on  a  question  of  the 
construction  of  a  deed  where,  whichever  way  it  was  decided,  it  would  necessarily  not  help  to  put  an  end  to 
the  litigation.    Lewis  v.  Green  [1905],  2Ch.,340.    The  declaration  was  refused  in  Earl  of  Dysartw.  Hammer- 
ton  (1914),  30  T.  L.  R.,  379,  because  its  effect  would  have  been  nugatorv.    A  party  is  "not  entitled  to  an 
opinion  on  a  speculative  or  academic  question."    Societe"  Maritime  v.  Venus  Steam  Shipping  Co.  (Ltd.) 
(1904),  9  Com.  Gas.,  289. 

162  Hampton  v.  Holman  (1877),  5  Ch.  D.,  183;  Magistrates  of  Edinburgh  v.  Warrender  (1863,  Scot.),  1  M. 
887.    Declaration  not  made  where  it  would  have  no  practical  utility,  as  the  jurisdiction  in  such  cases  was 
vested  in  another  court.    Barraclough  v.  Brown  [1897],  A.  0.  615,  623.    See  also  Faber  v.  Gosworth  U.  C. 
(1903,  Ch.),  88  L.  T.,  549,  where  declaration  was  declined,  inasmuch  as  nothing  had  been  done  under  cer- 
tain building  plans  and  it  was  impossible  to  tell  what  the  consequences  of  the  declaration  asked  might  be. 

>«•<  (1900)  Juristisehe  Wochcnschrift,  70  (~R.  G.,  Dec.  15, 1899). 

1S<  (1910)  73  R.  G.,  82,  87;  Hellwig,  op.  cit.,  281. 

"*  (1913)  83  R.  G.,  358,  and  the  cases  cited  in  that  opinion.  The  court  stated  that  this  is  frequently 
necessary  in  tort  cases  where  the  damages  can  not  be  established  for  some  years.  See  also  (1905)  61  R.  G., 
164, 169. 


32  THE  DECLARATORY  JUDGMENT. 

the  party  with  the  approval  of  the  court  intends  to  use  the  judgment 
in  another  proceeding.166 

Inasmucn  as  the  declaratory  judgment  is  designed  to  settle  legal 
relations  that  are  disputed  or  endangered  by  the  defendant's  manifest 
ability  to  threaten  them,  the  declaration  will  not  be  made  by  con- 
sent.167 This  is  expressly  provided  for  in  the  Ontario  marriage  act, 
by  which  the  court  may  under  certain  circumstances  declare  mar- 
riages void.  The  French  have  a  well-established  procedure  of  con- 
sent judgments  based  on  simulated  litigation,  called  judgments 
d'expedient,  which  are  designed  to  give  judicial  authentication  to  an 
agreement  of  the  parties.168 

It  is  proper  here  to  advert  to  the  fact  that  while  the  declaration  of 
one  certain  jural  relation  may  be  sought,  its  purpose  may  be  more 
far-reaching.  Thus,  a  negative  declaration  to  establish  that  certain 
persons  were  not  members  of  a  certain  club  was  really  intended  to 
establish  their  freedom  from  the  duty  of  paying  the  debts  of  the  club, 
which  had  become  insolvent  (i.  e.,  a  declaration  of  privilege).169  So  a 
declaration  of  the  defendant's  no  right  to  walk  over  land  in  the  plain- 
tiff's possession,  i.  e.,  no  easement,  may  be  designed  to  establish  the 
totality  of  jural  relations  involved  in  ownership,  just  as  the  old  action 
of  ejectment  was  really  an  action  to  try  title,  not  merely  possession. 

DECLARATION   DISCRETIONARY. 

It  has  already  been  noted  that  the  making  of  a  judicial  declaration 
in  a  declaratory  action  is  discretionary  with  the  court.  Of  that  there 
is  little  doubt.  Chitty,  J.,  in  Austen  v.  Collins  17°  expressed  the  follow- 
ing much-quoted  dictum: 

The  rule  leaves  it  to  the  discretion  of  the  court  to  pronounce  a  declaratory  judgment 
when  necessary,  and  it  is  a  power  which  must  be  exercised  with  great  care  and 
jealousy. 

That  formula  has  traveled  to  the  ends  of  the  world,  to  Australia, 
to  India,  to  Ontario,  to  British  Columbia,  and  to  the  State  of  Connect- 
icut;171 and  like  most  formulas,  which  are  frequently  used  to  avoid  the 
necessity  of  thought  and  analysis,  it  has  enabled  courts  to  refuse  a 
declaratory  judgment  when  they  could  not  justify  their  action  on 
some  better  ground.  While  admitting  the  principle  of  discretion,  it 
is  our  purpose  to  determine  to  what  extent  the  exercise  of  that 
discretion  has  been  hardened  into  rule. 

It  has  already  been  noted  that  a  declaratory  judgment  will  not  be 
rendered  unless  the  courts  believe  that  it  will  serve  some  present 
practical  purpose. 

It  is  a  universal  rule  that  a  court  will  not  render  a  declaratory 
judgment  where  it  has  no  jurisdiction  of  the  case,  either  by  reason 
of  subject-matter,172  or  because  jurisdiction  has  been  expressly  con- 

'M  Hope  v.  Hope  (1854),  4  be  G.  M.  &  G.,  328;  The  Manar  (1903),  89  L.  T.,  218:  Guaranty  Trust  Co.  t>. 
Hannay  (C.  A.)  [1915],  2  K.  B.,  535.  The  German  courts  also  reco?nize  this  purpose  as  a  justification: 
Hell>vi<j,  on.  cit.,285,  notec.  But  in  one  case  whore  the  declaration  was  asked  in  order  to  use  it  as  a  founda- 
tion of  a  suit  for  damages  it  was  refused,  because  it  would  not  have  enabled  plaintiff  to  recover  if  he  had  it. 
Earl  of  O  vsart  v.  Hamnurton  (19141,  30  T.  L.  R.,  379;  see  also  Cornish  v.  Boles  (1914),  31  Ont.  L.  Rep.,  524. 

'«'  Williams  v.  Powell  (1894),  W.  N.  141. 

!«  Glasson,  op.  cit.  511,  traces  this  proceeding  back  to  an  ordinance  of  Charles  VIII  of  1425.  It  is  analogous 
to  the  Roman  jure  in  cessio  proceeding. 

>•»  (1882)  8  R.  G.,  3. 

l:»  (1886)  54  L.  T.,  903. 

i"  See  Ackerman  v.  Union  &  New  Haven  Trust  Co.  (1917),  91  Conn.,  500,  507. 

ln  Declaration  sought  in  England  that  plaintiffs  were  lawfully  in  occupation  of  land  in  South  Africa, 
as  incidental  to  suit  for  injuncli  >n  and  damages.  Held,  that  the  court  was  without  jurisdiction:  British 
South  Africa  Co.  v.  Companhia  de  Mocambiiue  (H.  L.)  [1893],  A.  C.,  602.  Suit  brought  after  expiration 
3f  statute  of  limitations:  Bishambhar  v.  Nadiar  (1914),  18  Calcutta  L.  J.,  671. 


THE  DECLARATORY  JUDGMENT.  33 

fided  by  statute  to  some  special  tribunal;173  or  the  court  may  refuse 
to  exercise  jurisdiction  because  the  law  has  provided  another 
remedy.174  Frequently  the  court  has  reached  the  conclusion  that, 
while  it  might  have  exercised  its  power  to  make  a  declaration,  it 
would  be  more  expedient  to  try  the  action  in  some  other  form.  This 
applies  particularly  to  those  cases  in  which  the  court  is  asked  to 
declare  the  invalidity  of  a  tax  law  or  of  an  assessment  under  such 
law,  in  which  cases  the  courts  have  held  that  the  claimant  could 
adequately  try  the  question  in  a  defense  against  enforcement  pro- 
ceedings.175 A  similar  conclusion  is  often  reached  in  the  case  of 
negative  declaratory  actions  in  which  the  plaintiff  wishes  to  antici- 
pate his  legal  defense  by  moving  as  actor  to  have  the  court  declare 
the  invalidity  of  a  written  instrument,  e.  g.,  an  insurance  policy,  on 
some  alleged  ground  of  defense  which  renders  it  void.  Here  the 
courts  have  frequently  said:  "Wait  until  you  are  sued  and  then 
raise  your  defense."176  But  where  the  declaration  or  a  regular  action 
is  optional,  the  courts  now  usually  give  the  plaintiff  his  choice.  The 
attitude  has  changed  from  one  01  extreme  conservatism  in  the  issue 
of  a  declaration  to  one  of  enlightened  recognition  of  its  value,  and, 
if  the  cases  of  the  last  few  years  are  any  criterion,  obstacles  to  its 
issue  are  now,  where  feasible,  avoided  ratner  than  sought. 

DECLARATIONS   OF   FACT. 

The  general  principle  which  appears  to  have  been  adopted  is  that 
the  courts  will  not  make  declarations  of  a  fact,  but  only  of  a  jural 
relation.  Exceptions  to  this  rule  have  been  infrequent;  yet  it  is 
difficult  to  conceive  why  the  rule  should  impair  very  seriously  the 
institution  of  declaratory  actions,  inasmuch  as  it  would  seem  feasible 
to  convert  the  request  for  the  declaration  of  an  operative  fact  into  a 
request  for  the  declaration  of  a  jural  relation.  Thus  in  Germany, 
where  the  courts  are  exceedingly  technical  in  this  matter,  a  plaintiff 
who  wished  to  establish  that  he  was  not  the  father  of  a  certain  child 
sought  a  declaration  that  he  had  not  physically  cohabited  with  its 
mother  during  the  period  of  gestation.  The  declaration  was  denied, 
on  the  ground  that  he  sought  the  declaration  of  a  fact  and  not  of  a 
legal  relation.177  Had  he  sought  to  establish  that  he  was  not  the 
child's  father,  the  action  would  probably  have  been  allowed,  although 
it  would  have  turned  on  the  establishment  of  the  fact  alleged.  So 

»»  Barraclough  t>.  Brown  [18971,  A.  C..  615.  623;  Grand  Junction  Waterworks  Co.  v.  Hamrton  U.  D.  C. 
1898],  2  Ch.,  331;  Bull  v.  Atty.  Gen.  of  N.  S.  Wales  [1916],  A.  C.,  564.  Exemption  from  military  service. 
Flint  v.  Atty.  Gen.  [1918],  1  Ch.,  216;  Scotland:  Balfour  t;.  Malcolm  (1842),  1  Bell.  153;  Leith  Police  (  omn;is- 
sioners  v.  Campbell  (1866),  5  M..  247;  N.  Y.  &  Ottawa  Ry.  Co.  v.  Township  of  Cornwall  (1913),  29  Ont.  L. 
Rep.,  522  (statute  gave  to  Board  of  Assessment  jurisdiction  over  petition  for  exemption  of  certain  pro)  erty 
from  taxation);  Mutrie  v.  Alexander  (1911),  23  Ont.  L.  Rep.,  396,  401.  But  see  Evans  v.  Manchester,  etc., 
R.  R,  (1887),  36  Ch.  D.,  62o. 


Co.  . 

N.  /,.)',  19  S1.  C.,112.    See  also  (Oct.  18, 1880/R.  G.)  in  Bahr,  op.  cit.,  143.    In  Australia,  the  court  has  declined 
to  render  a  declaratory  decree  in  a  case  where  it  would  have  been  unable  to  make  it  ellective  by  further 
coercive  relief:  Bruce  v.  commonwealth  Trademark  Label  Assn.  (1907),  4  C.  L.  R.,  156.    But  see  Lautour 
v.  Atty.  Gen.  (1865.  C.  A.),  5  N.  R.,  102,  231. 
'»  Toronto  Ry.  Co.  v.  City  of  Toronto  (1906),  13  Ont.  L.  Rep.,  532;  Ottawa  Y.  M.  C.  A.  v.  Ottawa  (1913, 


remedy  in  a  regular  actio 

"i™  Brooking  v.  Maudslay,  Hon"&  i-ield  (18S8)  38  Ch.  D.  636,  Honour  v.  Equitable  Life  Ass.  Soc.  [1900], 
1  Ch.,  852,  854,  and  supra,  note  133  for  American  cases. 
"'(Oct.  18,  1880,  R.  G.),  Bahr,  Entscheidungen,  143. 

107908—19 3 


34  THE  DECLAEATCHY  JUDGMENT. 

other  declaratory  actions  of  this  kind  have  been  dismissed  in  Germany 
where  they  were  directed  to  establish  a  man's  religion,  capacity  to 
earn  a  living/78  the  condition  or  quality  of  an  article,179  a  trade 
custom,180  or  the  actual  boundaries  of  a  sales  district.181  In  all  these 
cases  the  German  Supreme  Court  put  its  denial  of  a  declaration  on 
the  ground  that  the  code  only  authorized  the  declaration  of  legal 
relations,  not  of  facts,  with  the  one  exception  of  the  establishment  of 
the  genuine  or  fraudulent  character  of  a  legal  instrument. 

The  English  courts  adopt  the  same  view.  In  the  above  cases  it 
would  have  been  possible  to  have  these  facts  determined,  provided 
they  were  operative  facts  producing  a  particular  jural  relation,  by 
placing  in  issue  the  jural  relation  instead  of  the  operative  fact  alone. 
This  is  done  constantly  in  the  English  courts  in  the  making  of 
declaratory  judgments,  and  the  declarations  requested  frequently 
embody  a  syllogistic  form  leading  up  from  operative  facts  to  legal 
conclusions.  So  while  the  English  courts  often  determine  facts  as 
incidental  to  legal  results,  they  will  not  undertake  to  determine  facts 
apart  from  their  legal  consequences.  Thus,  in  the  construction  of  a 
will  and  the  validity  of  a  power  of  appointment  thereunder,  it  became 
necessary  to  determine  the  domicile  of  the  testatrix,  and  whether 
her  will  was  executed  in  accordance  with  the  lex  domicilii  and  pur- 
ported to  execute  the  power.182  So  Eve,  J.,  in  Chapman  v.  Michael- 
son,183  in  establishing  the  invalidity  of  a  certain  mortgage,  had  to 
determine  that  the  mortgagee  entered  into  the  mortgage  as  a  money 
lender  and  that  he  was  not  in  fact  registered. 

The  Scotch  courts  appear  to  be  more  liberal  in  the  declaration  of 
facts,  although  they  also  have  said  on  occasion  that  an  action  to  have 
a  fact  declared  without  any  consequential  "right"  or  "relief"184  was 
incompetent.  Yet  they  have  held  an  action  competent  where  the 
plaintiff  sought  merely  a  declaration  that  his  lands  were  outside  the 
boundaries  of  a  district  in  which  he  had  been  taxed  upon  them185 
or  that  a  plaintiff  was  at  a  certain  date  of  sound  mind.186 

A  case  recently  decided  by  the  appellate  division  in  New  York187 
indicates  the  need  of  legislation  empowering  the  courts  to  declare 
facts,  and  when  necessary,  with  the  aid  of  a  jury.  The  plaintiff's 
book,  The  Genius,  was  withdrawn  from  sale  by  his  publisher,  the 
defendant,  because  the  defendant  had  been  threatened  with  prosecu- 
tion by  the  Society  for  the  Suppression  of  Vice  on  the  ground  that 
the  book  was  obscene.  Its  circulation,  if  obscene,  was  a  punishable 
offense.  If  not  obscene,  as  the  plaintiff  insisted,  the  defendant's 
withdrawal  of  the  book  was  a  violation  of  his  publisher's  contract 
with  the  plaintiff.  The  parties  agreed  to  submit  the  question  of 

"8(1895)  Juristische  Wochenschrift,  60,  No.  3. 

"'Ibid.  (1889)364,  No.  1. 

i«i(1887)  18  R.  G.,  1(>G,  172.    See  also  Peterscn,  op.  cit.  498. 

wi(1902)  50  R.  G.,  399.  See  also  (1914)  85  R.  G.,  440,  442  (whether  defendant  had  converted  a  certain 
typewriter). 

iw  In  re  Wilkinson's  Estate  [1917],  1  Ch.,  620;  see  also  In  re  Price  [1900],  1  Ch.;  442,  447. 

w*  [1908]  2  Ch.  C19.  As  to  whether  a  certain  road  constituted  a  way  ol  necessity  so  as  to  pass  by  implied 
grant,  Nicholls  v.  Nicholls  (1899,  Ch.)  81  L.  T.  81.  In  India,  a  declaration  was  made  that  certain  fixtures 
were  erected  before  a  certain  date.  Azeeza  v.  Calcutta  (1916),  24  Calcutta  L.  J.,  562. 

w  Giflord  v.  Trail  (1829)  7  S.  854  (that  certain  petitioners  have  a  vote  as-freeholders,  which  they  derided 
under  the  circumstances  was  not  a  legal  question);  Lyle  v.  Bow  (1830)  9  S.  22  (declarator,  to  remedy  a 
defect  in  the  record  of  another  case,  that  a  certain  person  was  merely  a  trustee). 

iw  Hope  v.  Edinburgh  Corporation  (1897)  5  S.  L.  T.  195. 

'^Mackintosh  v.  Smith  &  Lowe  (1861)  2  M.  389,  though  they  refused  later  to  allow  this  declaration, 
made  ex  parte,  to  constitute  the  foundation  of  an  action  for  damages  for  false  imprisonment  against  the 
keepers  of  an  asylum.  In  New  Zealand,  a  declaration  was  made  that  a  power  oi  attorney  executed  in 
Louisiana  had  been  duly  verified.  Dillion  v.  The  Australian  Mutual  Provident  Society  (1901,  N.  Z.)  20 
S. C.  188. 

iw  Dreiser  v.  John  Lane  Co.  (1918,  N.  Y.  App.  Div.)  171  N.  Y.  Sup.,  COS. 


THE  DECLARATORY  JUDGMENT.  35 

violation  of  contract  to  the  court  on  an  agreed  statement  of  facts, 
the  only  matter  in  issue  being  whether  the  book  was  obscene.  It 
was  held  that  as  this  was  a  question  of  fact  it  was  not  a  proper  ques- 
tion for  judicial  determination  on  voluntary  submission.  The  only 
method  then  left  to  the  plaintiff  to  have  this  issue  determined  would 
have  been  to  sue  for  damages  for  loss  of  royalty— which  would  not 
have  been  easy  to  prove — and  thus  enable  a  jury  to  find  whether 
the  book  was  obscene.  It  would  be  simpler  and  would  avoid  this 
compulsory  show  of  legal  hostilities  if  the  code  were  amended  to 
enable  the  courts  on  submitted  controversies  to  declare  facts,  with 
the  aid  of  a  jury,  if  necessary,  or  requested  by  one  of  the  parties. 

On  the  whole  it  may  be  said  that  there  is  a  great  indisposition  to 
declare  facts  except  as  incidental  to  their  legal  consequences,  and  in 
Germany  no  request  for  the  mere  declaration  of  a  fact  is  at  any  time 
granted. 

FUTURE    INTERESTS. 

It  frequently  becomes  desirable  to  obtain  a  judicial  decision  upon  a 
state  of  circumstances  which  has  not  yet  arisen.  This  is  particularly 
the  case  with  reference  to  the  rights  of  reversioners  and  remainder- 
men, but  it  is  also  true  of  other  persons  who  anticipate  the  enjoyment 
of  rights,  etc.,  in  the  future  and  who  wish  in  advance  of  the  event 
to  know  their  prospective  legal  position.  Indeed,  it  is  probably  no 
exaggeration  to  say  that  the  majority  of  declaratory  actions  are 
brought  in  order  to  enable  the  claimants  to  know  how  they  shall 
conduct  themselves  in  the  future.  A  great  many  cases  have  been 
decided  in  which  this  problem  has  been  involved,  and  while  the  deci- 
sions are  not  altogether  reconcilable,  some  distinctions  may  be  found 
in  them  which  will  repay  analysis  and  examination. 

First,  as  to  reversioners  and  remaindermen.  The  common-law 
aversion  to  the  determination  of  any  questions  which  did  not  require 
immediate  solution  and  relief  at  the  hands  of  the  court  was  not  over- 
come by  the  provisions  of  the  act  of  1850,  which  gave  the  court  power 
on  a  stated  case  to  express  its  opinion  on  questions  of  the  construction 
of  wills,  deeds,  and  other  written  instruments,  but  vested  it  with  dis- 
cretion to  refuse  an  opinion  if  it  considered  it  advisable;  or  by  the  act 
of  1852,  which  enabled  it  to  render  declaratory  judgments  where 
consequential  relief  might  have  been  granted  but  was  not  claimed. 
The  narrow  construction  that  the  declaration  could  be  made  only 
where  the  court  could  have  given  positive  relief  was  sufficient  to 
exclude  reversioners  and  remaindermen  from  having  their  interests 
determined)  for  what  coercive  relief  could  the  court  grant  them  during 
the  life  of  the  preceding  estate  in  esse?  These  were  not  actions  to 
prevent  the  life  tenant  from  committing  waste,  but  merely  to  deter- 
mine what  ther  rights,  privileges,  powers  or  immunities  of  the  rever- 
sioner  or  remaindermen  were.  In  view  of  this  conceived  necessity  of 
being  able  to  give  coercive  relief,  it  is  not  surprising  that  the  courts 
before  1883,  at  least,  and  not  always  after  that,  rejected  practically  all 
requests  for  declarations  merely  as  to  interests,  the  full  enjoyment  of 
which  lay  in  the  future.  Nor  does  any  serious  distinction  appear  to 
have  been  made  between  vested  and  contingent  remainders.  An 
important  case  in  which  this  view  was  expressed  was  that  of  Lady 
Langdale  v.  Briggs,188  decided  in  1856,  in  which  the  court  refused 

188  (1856)  8  De  G.  M.  &  G.,  391.  424. 


36  THE  DECLAKATOBY  JUDGMENT. 

during  the  continuance  of  a  life  estate  to  determine  how  far  various 
ulterior  limitations  of  leaseholds  and  copyholds  given  in  trust  in  a 
will  were  affected  by  a  certain  codicil.  It  would  have  been  possible 
to  make  the  decision,  but  the  limitations  placed  upon  the  declaration 
in  one  or  two  previous  decisions,  together  with  the  view  expressed 
that  if  the  court  could  make  a  declaration  of  "rights"  to  arise  in  the 
future  it  would  render  the  bill  to  perpetuate  testimony  practically  use- 
less,189 served  to  induce  the  court  to  deny  the  declaration.  That  deci- 
sion deserves  mention  because  the  colonial  courts — notably  those  of 
India — were  guided  by  it  in  reaching  the  same  conclusions.  In  two 
previous  cases  19°  the  vice  chancellor  had  refused  to  make  a  declara- 
tory decree  in  the  lifetime  of  the  tenant  for  life,  with  regard  to  the 
interests  of  persons  who  might  be  entitled  in  reversion.  Apparently, 
the  fact  that  the  reversioners  through  death  might  not  come  into  the 
reversion  was  deemed  of  moment  in  deciding  against  the  declaration, 
notwithstanding  the  fact  that  there  was  a  present  interest  in  the 
reversion.  So  in  another  leading  case,  Bright  v.  Tyndall,191  the  ques- 
tion was  as  to  the  rights  under  a  will  of  the  daughters  still  unborn 
of  certain  persons,  if  the  daughters  should  live  to  be  21  and 
become  married  before  that  time.  In  an  exhaustive  opinion,  Vice 
-Chancellor  Malins  decided  that  in  view  of  the  fact  that  many  of  the 
persons  whom  his  opinion  might  affect  were  still  unborn  and  that  the 
operative  facts  on  which  his  decision  was  asked  might  never  arise, 
he  would  refuse  the  declaration.  Yet  there  have  been  cases — par- 
ticularly where  the  parties  to  be  affected  were  in  esse  and  the  remain- 
ders were  vested — in  which  the  court  has,  in  the  exercise  of  its  dis- 
cretion, concluded  that  the  circumstances  warranted  it  in  making  a 
declaration  of  future  interests.192 

The  more  modern  rule,  which  in  recent  cases  has  been  approved, 
was  enunciated  in  1882  by  Jessel,  M.  K.,  in  Curtis  v.  Sheffield.193  He 
remarked : 

Now  it  is  true  that  it  is  not  the  practice  of  the  court,  and  was  not  the  practice  of  the 
Court  of  Chancery,  to  decide  as  to  future  rights,  but  to  wait  until  the  event  has  hap- 
pened, unless  a  present  right  depends  on  the  decision,  or  there  are  some  other  special 
circumstances  to  satisfy  the  court  that  it  is  desirable  at  once  to  decide  on  future  rights. 
But  where  all  the  parties  who  in  any  event  will  be  entitled  to  the  property  are  of  age 
and  are  ready  to  argue  the  case,  the  reason  of  the  rule  departs,  and  it  becomes  a  bare 
technicality.  The  reason  of  the  rule  is  this,  that  the  court  will  not  decide  on  future 

«»»  Pee  also  Yool  v.  Ewing  [1904],  Ir.  Ch.,  434,  445. 

iM  Greenwood  v.  Sutherland  (1853),  10  Hare,  App.  XIII;  Garli?k  ».  Lawson  (1853),  iHd.,  XV.  In  tha 
first  case,  under  a  will,  one  of  the  questions  was: 

"What  chi  dren,  grandchildren,  or  other  remote  issue  of  the  sens  and  daughters  are  included  in  the 
word  'issue'  and  what  interest  do  such  issue  respectively  take;  and  at  what  ages  are  sunh  interests  vested 
and  payable."  Wood,  V.  C.,  refused  a  declaration  except  with  regard  to  the  legatees  before  the  court. 

w>  (1870),  4  Ch.  I)..  189, 194.  So  where  a  declaratory  decree  afifected  cnlv  infants  it  was  not  made:  Webb  v. 
Byng  (1856),  8  De  G.  M.  &  G.,  633. 

"2  That  a  remainderman  was  entitled  to  property  absolutely,  rn  the  death  of  a  life  tenant,  the  limitation 
over  not  b^ing  v^id  for  remoteness.  Bell  v.  Cade  (1861),  2  J.  &  H.,  122;  see  a'so  Fletcher  p.  Rogers  (1853),  10 
Hare,  App.  Mil  (the  interests  of  children  who  might  be  aiive  at  the  death  of  their  respective  parents); 
Bowling  c.  Dow.ing  (1866),  L.  R.  1  Ch.,  612.  (that  certain  srns  tn<  k  an  absolute  interest,  to  be  divested  in 
the  case  of  a  parti  u'ar  son  if  he  died  without  issue).  Sti"h  de-'arations  as  to  "future  interests"  had 
occasionally  been  made  even  before  1852  when  incidental  to  the  determination  of  present  rights,  although 
the  practice  aprmars  to  have  been  somewhat  irregu'ar.  See  Curtis  v.  Sheffield  (1882,  C.  A.),  31  Ch.  D.,  1,  4. 
For  the  Herman  practice  see  (1885),  13  R.  G.,  38C,  388;  (1887)21  R.  O.,"400.  411. 

1M  (1882,  C.  A.)  31  Ch.  D.,  1,  3,  4.  This  rule  was  approved  in  In  re  Staples  [1916]  1  Ch.  322,  where  the 
plaintiffs  were  devisees  in  remainder,  representing  all  of  their  class,  who  were  all  over  age,  who  wished  to 
know  whether  they  had  estates  in  tail  in  remainder  as  tenants  in  common,  and  if  not,  what  classes  would, 
on  the  death  of  the  life-tenant  be  entitled.  The  court  declined  to  mal-e  the  declarations  while  the  devisers 
were  remainder  tr.en.  In  In  re  Freme's  Contract  (C.  A.)  [190"]  2  (  h.  778,  the  court  saw  no  reason  wtih 
they  should  refuse  a  declaration  which  might  affect  unborn  children,  they  being  in  the  same  case  why 
certain  other  children  who  were  represented  before  the  court.  An  excellent  criticism  of  the  English  deci- 
sions before  1892  is  contained  in  an  article,  The  Declaration  of  Future  Rights,  by  W.  A.  Bewes  (1892). 
8  L.  Quart.  R.,  48-55. 


THE  DECLARATORY  JUDGMENT.  37 

rights,  because  until  the  event  happens  it  does  not  know  who  may  be  interested  in 
arguing  the  question,  and  therefore  may  be  shutting  out  parties  who,  when  the  event 
happens,  may  be  entitled  to  succeed. 

Yet  the  old  tradition  is  strong,  and  notwithstanding  the  fact  that 
Order  XXV,  rule  5,  has  cleared  away  the  limitation  that  the  court 
must  have  been  able  to  give  consequential  relief,  and  Order  LIV,  A, 
gives  a  wide  power  of  interpreting  wills  and  other  written  instru- 
ments, the  tendency  to  revert  to  the  former  restrictions  frequently 
reappears.194  On  the  whole,  we  may  say  that  when  the  remainder 
is  vested  and  not  contingent,  when  the  parties  to  be  affected  by  the 
judgment  are  in  esse,  of  age,  and  represented  before  the  court,  the 
general  rule  is  to  make  the  declaration.195 

The  Scotch  courts,  which  have  always  been  less  conservative  than 
those  of  England  in  determining  future  interests,  have  recently  laid 
considerable  emphasis  on  the  criterion  of  whether  the  interest  was 
vested  or  not.196  Yet,  while  they  have  not  hesitated  to  decide  on 
contingent  future  interests  if  there  was  some  one  in  existence  to 
dispute  them,197  they  have  not  been  willing  to  declare  the  power  of 
certain  persons  to  give  property  by  will  when  their  decision  might 
profess  to  determine  the  rights  of  children  yet  unborn  who  would 
not  be  bound  by  the  decision,  and  when  there  was  a  possibility  of 
contingencies  arising  which  might  render  it  nugatory.198  Indeed, 
dicta  are  to  be  found  in  the  Scotch  reports  to  the  effect  that  the  pro- 
cess of  declarator  is  not  intended  to  declare  "remote  and  contingent 
rights."  199 

The  Indian  courts  before  and  since  the  enactment  of  the  Specific 
Relief  Act  in  1877  have  rendered  decisions  which  are  utterly  irrecon- 
cilable.200 The  more  modern  rule  appears  to  permit  those  having 
vested  future  interests  to  bring  a  declaratory  action  to  determine  their 
rights,  etc.201  So,  many  cases  are  to  be  found  in  which  revisioners 
bring  declaratory  suits  to  have  it  determined  that  various  acts  of  the 
life-tenant,  e.  g.,  alienation,  adoption,  and  mortgage,  are  void  as  to 
the  plaintiff.202 

In  two  interesting  cases,  a  husband  whose  right  depended  on  his 
surviving  his  wife,203  and  a  woman  whose  object  was  to  obtain  a 
declaration  that  she  was  entitled  to  an  inchoate  right  of  dower  in 
certain  lands,204  were  denied  declarations — although  in  the  latter  case 
it  was  admitted  that  her  interest  was  a  present  one — on  the  ground 
that  the  enjoyment  of  these  interests  depended  on  a  contingency.  If 
rendered  now,  the  judgments  would  not  commend  themselves  as  well 
reasoned. 

Apart  from  the  interests  of  reversioners  and  remainder  men  under 
the  peculiar  common-law  rules  governing  real  property,  a  great  many 
actions  are  brought  by  persons  who  wish  the  court  to  declare  by 

"4  See  Yool  v.  Ewing  [19041.  Jr.  Ch.  434, 444. 

195  See  West  v.  Lord  Sackville  (C.  A.)  [1903],  2  Ch.  378,  per  Stirling,  L.  J.;  In  re  Freme's Contract  (C.  A.) 
1905],  2  Ch.  778. 

i»»  Millar  v.  Millar's  Trustees  (1896),  4  S.  L.  T.,  122. 

w  Mackenzie  v.  Lady  Mary  Hanbury  (1846),  8  D.,  964.  See  also  Provan  v.  Provan  (1840)  2  D.,  298,  3, 
disputed  question  of  vesting  'in  the  future. 

"a  Harvey  v.  Harvey's  Trustees  (1860),  22  D.,  1310,  1326. 

199  Mag.  of  Edinburgh  v.  Warrender  (1863),  1  M.,  887. 

**>  A  brief  survey  of  the  declaratory  judgments  on  the  rights  of  reversioners  may  be  found  in  2  Woodman, 
Digest  of  Indian  Law  Cases,  col.  2142  et  seq. 

a»  See  Thakurain  v.  Thakurain  (1881,  P.  C.)  L.  R.  9,  Indian  Ann.  41. 

*»  Isri  v.  Mussumut  (1883.  P.  C.)  L.  R.  10,  Indian  App.  150.  See  among  the  official  illustrations  to  sec- 
tion 42  of  the  Specific  Relief  Act,  illustration  (d),  (e).  and  (f). 

2<B  Kevan  v.  Crawford  (1877),  6  Ch.  D.  29,  42,  explainable  in  that  it  was  decided  before  1883,  when  Order 
XXV  was  promulgated. 

20*  Bunnell  v.  Gordon  (1890),  20  Ont.  L.  Rep.  281,  a  reversion  to  the  old  tradition. 


38  THE  DECLARATORY  JUDGMENT. 

anticipation  what  their  future  rights  or  duties,  powers  or  liabilities 
may  be.  This  function  of  the  declaratory  judgment  is  exceedingly 
valuable,  for  it  enables  persons  in  doubt  to  learn  authoritatively  how 
they  are  to  govern  themselves  in  the  future.  The  stability  of  legal 
relations,  certainly  one  of  the  most  important  phases  of  teleological 
jurisprudence,  is  thereby  greatly  enhanced,  and  it  is  to  be  hoped  that 
the  efforts  of  the  future  will  be  directed  to  the  promotion  of  this 
function  of  the  law.  To  this  end  the  declaratory  judgment  will  be 
found  a  most  effective  instrument. 

In  England,  because  of  the  origin  of  the  declaratory  judgment  in  a 
dependency  upon  the  power  to  grant  consequential  relief,  a  conserva- 
tive tendency  in  declaring  future  jural  relations  is  to  be  noted,  not 
altogether  overcome  by  the  unrestricted  powers  conferred  by  Order 
XXV.  The  usual  rule  still  is  that  only  present  jural  relations  will  be 
passed  upon.  The  extent  of  the  increased  liberality  in  declaring  jural 
relations  with  respect  to  the  future  may  best  be  illustrated  by  the 
decided  cases.  Thus,  it  has  been  held  that  the  defendants  were  liable 
for  the  damage  the  plaintiff  had  sustained  and  might  sustain  in  the 
future  by  reason  of  the  subsidence  of  canal  water  and  its  escape  into 
plaintiff's  mill;205  that  the  defendant  and  not  the  plaintiff  is  liable 
to  bear  the  excess-profits  tax  in  future  payments  of  salary  and  com- 
mission;206 that  plaintiff  had  a  future  power  of  renewal  of  his  lease, 
his  compensation  for  the  surrender  of  his  leasehold  interests  depend- 
ing on  the  value  of  his  power  of  renewal,  if  he  hail  it  ;207  that  a  certain 
contract  which  still  had  some  time  to  run  was  not  binding  on  the 
plaintiffs;208  that  defendants  as  partners  before  the  war  would  be 
entitled  to  profits  on  a  certain  oasis  after  the  war;209  that  a  life- 
tenant  under  a  proviso  that  his  estate  should  be  forfeited  if  he  sold 
it  might  raise  ab  ante  the  question  of  his  power  to  sell  without  incur- 
ring any  forfeiture;210  that  certain  authorities  were  entitled  to 
inspect  in  the  future  all  acts  of  committees  submitted  to  a  municipal 
council  for  approval  ;211  that  plaintiff  had  a  right  of  access  to  the  city 
hall;212  that  plaintiff  was  entitled  to  a  percentage  of  certain  royalties 
received  in  the  future  by  the  defendant.213  In  the  last  case  (Hoffman 
v.  McCloy),  which  arose  on  appeal  from  an  order  granted  on  motion 
made  over  a  year  after  the  judgment  for  the  appointment  of  a  receiver 
and  an  accounting  for  royalties  received  since  the  date  of  the  judg- 
ment, the  majority  of  the  Appellate  Division  of  Ontario  held  that  such 
royalties  could  only  be  collected  by  a  regular  action  after  they  became 
due  and  they  intimated  that  the  original  declaratory  judgment  should 
not  have  been  made,  on  which  point,  however,  there  was  some  differ- 
ence of  opinion.  In  such  cases,  a  conservative  court  could  probably 
satisfy  its  conscience  in  that  the  judgment  for  damages  for  the  injury 
already  sustained  is  in  implied  declaration  that  the  continuance  of  the 
injury  would  be  followed  by  the  same  consequences. 

a*  Evans  v.  Manchester,  etc.  Ry.  (1887),  36  Ch.  D.,  626,  640.    But  see  Atty.  Gen.  v.  Scott  (1904,  K.  B.), 
20  T.  L.  R.,  630,  633. 
808  Thompson  Bros.  v.  Amis  [1917],  2  Ch.,  211,  220. 

207  Bogg  v.  Midland  Railway  (1867)  L.  R.  4  eq.  310. 

208  Societe  Maritime  t>.  Venus  Shipping  Co.  (1904)  9  Com.  Cas.  289.    And  see  the  numerous  cases  recently 
decided  on  the  effect  of  the  war  on  contracts  still  to  be  performed  in  whole  or  in  part,  infra,  notes  306-308. 

209  Hugh  Stevenson  &  Sons,  Ltd.,  v.  AktiengesellschaftfurCartonnagenindustrie(H.  L.)  [1918]  A.  C.  239. 
M«  Chaplin's  Trustees  v.  Hoile  (1890,  Scot.)  28  S.  L.  R.  51. 

2"  Williams  v.  Mayor  of  Manchester  (1897,  Q.  B.)  13  T.  L.  R.  299. 

M2  Journal  Printing  Co.  v.  McVeity  (1915,  Ont.  App.  Div.)  33  Ont.  L.  Rep.  166. 

MS  Powell  &  Thomas  v.  Evans  Jones  &  Co.  [1905],  1  K.  B.,  11;  Hoffman  v.  McCloy  (1917,  Ont.  App.  Div.), 
38  Ont.  T,.  Rep.,  446.  But  see  Stewart  v.  Henderson  (1914,  Ont.  App.  Div.),  30  Ont.  L.  Rep.,  447,  where  a 
declaration  on  an  analogous  claim  was  refused. 


THE  DECLARATORY   JUDGMENT.  39 

In  an  action  against  an  insurance  company,  the  plaintiff  sought  to 
have  a  life  insurance  policy  declared  valid  on  which  the  company  had 
repudiated  liability  on,  the  ground  that  it  had  been  obtained  by  fraud. 
The  insured  was  still  alive;  hence  no  action  on  the  policy  was  yet 
possible.  The  court  declined  the  declaration  on  the  ground  that  the 
company  might  be  in  a  better  position  to  defend  the  suit  on  the  policy 
when  the  action  matured  than  it  then  was.  The  ground  does  not 
appear  convincing,  inasmuch  as  it  had  repudiated  liability  on  the 
ground  of  fraud,  of  which  it  must  have  had  evidence.214 

We  have  seen  that  the  German  law  made  the  declaratory  action 
dependent  on  a  condition  diametrically  opposed  to  that  of  the  English 
act  of  1852,  namely,  that  there  shall  be  no  right  to  consequential 
relief,  whereas  in  England  the  existence  of  such  a  right  was  essential. 
Accordingly,  Germany  found  the  declaratory  judgment  an  exceedingly 
useful  instrument  for  the  declaration  of  jural  relations  to  be  enjoyed 
in  the  future.  From  the  beginning,  therefore,  "future  rights"  have 
been  declared,  the  only  limitation  being  that  there  had  to  be  an  exist- 
ing legal  relation  between  the  parties  when  the  declaratory  action 
was  instituted.  Thus,  we  find  judgments  declaring  a  liability  for 
future  damages;215  that  payments  be  reimbursed  for  any  claims  which 
mav  be  brought  against  the  plaintiffs  ;216  that  a  landed  estate  is  bound 
to  furnish  wood  as  needed  to  a  municipality;217  that  defendants  were 
bound  under  a  contract  to  pay  plaintiff  a  certain  sum  in  case  she 
married;218  that  a  father  was  under  a  duty  to  furnish  his  daughter 
upon  her  marriage  with  a  reasonable  outfit;219  that  a  foreign  govern- 
ment was  entitled  to  a  legacy  as  soon  as  the  royal  sanction  was 
given;220  that  an  officer's  wife  was  entitled  to  a  pension  when  he 
died.221  But  a  prospective  heir  can  not  bring  an  action  during  the 
lifetime  of  a  testator  to  determine  the  invalidity  of  a  will,  on  the 
ground  that  there  is  as  yet  no  sufficient  "legal  relation"  between  the 
parties.222 

,  Reference  has  already  been  made  223  to  the  German  law  in  force 
since  1898  by  which  an  action  may  be  brought  under  certain  circum- 
stances to  recover  money  or  enforce  performance  of  an  obligation 
due  in  the  future.  This  is  not  a  declaratory  judgment,  but  a  judg- 
ment which  may  be  executed  when  the  obligation  becomes  due.  The 
advantages  of  this  procedure  under  modern  methods  of  business  afford 
a  profitable  subject  for  study  by  American  lawyers. 

DECLARATION    OF    STATUS. 

The  determination  of  questions  of  status  was  the  earliest  function 
of  the  declaratory  judgment  both  in  Roman  law  and  by  specific  desig- 
nation in  the  English  law.  The  public  and  private  interest  in  the 
security  and  certainty  of  personal  status  induced  the  early  extension 

n«  Honour  v.  Equitable  Life  Ass.  Soc.  [1900],  1  Ch.,  852.  In  similar  cases  the  courts  have  hesitated  to 
declare  policies  and  notes  void  before  they  became  due,  preferring  to  allow  the  plaintiff  to  plead  his  defenses 
when  sued  on  these  instruments.  See  supra,  note  133. 

21*  (1885)  13  R.  G.,  372,  374;  (1901)  49  R.  G.,  370,  371. 

216  (1905)  61  R.  G.,  ll>4,  166. 

*"  (1893)  41  R.  G.,  369. 

218  See  Peterson,  op.  cit.  501,  note. 

219  (1901)  49  R.  G.,  370.    But  if  she  had  not  been  engaged  when  she  brought  the  action,  the  court  would 
have  for.nd  that  she  had  an  insufficient  "legal  interest."    The  father  had  refused  to  give  her  the  outfit. 
Execution,  of  course,  was  conditional  on  her  actual  marriage. 

75  R.  G.,  406. 


.      .,        . 

221  (Inly  6,  1880,  R.  G.)  Biihr,  op.  cit.  144.    This  claim  was  both  conditional  and  future.     The  officer  was 
Still  alive,  and  it  was  conditional  on  the  wife  surviving  him. 

22 


, 

222  Gatipp-Stein,  op.  cit.  608. 

223  Supra. 


40  THE  DECLARATORY  JUDGMENT. 

of  judicial  power  to  the  determination  of  doubtful  or  disputed  cases 
of  status.  It  will  be  recalled  that  the  Legitimacy  Declaration  Act, 
1858,  enabled  any  British  subject  to  apply  by  petition  to  the  Court  for 
Divorce  and  Matrimonial  Causes — the  court  which  had  taken  over  the 
jurisdiction  in  matters  of  status  formerly  vested  in  the  ecclesiastical 
courts — for  a  declaration  of  legitimacy,  or  of  the  validity  or  invalidity 
of  a  marriage.224  That  same  act  empowered  any  person  domiciled  in 
England,  Ireland,  or  Scotland,  or  having  real  estate  in  England  or 
Scotland,  to  apply  for  a  "declaration  of  right"  to  be  deemed  a 
natural-born  subject.225 

Under  this  act  various  cases  have  arisen  in  which  a  plaintiff  claimed 
a  declaration  that  he  was  legitimate  and  the  lawful  successor  to  a  title 
or  to  property,  as  a  consequence  of  the  validity  of  the  union,  as  a 
lawful  marriage,  of  which  he  was  the  offspring.228  But  the  English 
courts  do  not  admit  an  action  to  have  a  child  declared  illegitimate,227 
as  is  permitted  in  Scotland,228  even  when  an  action  is  framed  involving 
property  for  the  purpose  of  establishing  the  illegitimacy  of  a  child.229 

The  English  ecclesiastical  courts  had  long  before  1857,  when  their 
jurisdiction  was  transferred  to  the  Court  for  Divorce  and  Matrimonial 
Causes  (now  the  Probate,  Admiralty,  and  Divorce  Division  of  the  High 
Court),  exercised  jurisdiction  over  suits  known  as  "jactitation  of  mar- 
riage"— a  term  derived  from  the  canon  law — in  which  one  person 
asserts  or  boasts  that  he  or  she  is  married  to  the  other,  whereby  a 
common  reputation  of  their  marriage  may  result.  Either  of  the 
parties  to  the  alleged  relationship — but  not  a  third  person  23° — may 
ask  for  a  declaration  that  such  a  marriage  never  existed  and  that  the 
boaster  be  enjoined  to  refrain  from  any  future  j actitation  of  the  mar- 
riage.231 It  is  analogous  to  an  action  for  slander  per  se.  Such  actions 
are  now  rare,232  as  the  same  result  is  obtainable  under  the  Legitimacy 
Declaration  Act,  authorizing  actions  to  which  third  persons  having 
roperty  interests  may  be  parties.  It  will  be  recalled  that  Order 
V,  rule  5,  does  not  apply  to  the  Probate  Division.  The  Scotch 
courts  deal  with  such  cases  by  the  declarator  of  putting  to  silence,  in 
which,  if  successful,  perpetual  silence  is  imposed  on  the  defendant. 
This  is  but  one  of  the  varied  uses  of  the  declarator  of  perpetual  silence. 
The  judgment  in  conclusive  as  to  the  fact  of  marriage  or  not.1  The 
English  law,  like  other  systems  of  law,  has  long  been  familiar  with 
the  action  for  the  annulment  of  marriage.  When  this  declares  void 
a  so-called  marriage  which  was  never  legally  a  marriage,  it  is  a  declara- 
tory judgment.  If  it  merely  annuls  a  voidable  marriage  on  the 
request  of  one  of  the  parties,  it  is,  like  a  divorce  decree,  investitive 
rather  than  declaratory.233  The  Scotch  utilize  the  declarator  of  mar- 
riage and  the  declarator  of  nullity  of  marriage  to  have  the  validity  or 
invalidity  of  a  marriage  declared.234  The  Indian  courts  frequently 

*"  21  and  22  Viet.  ch.  93,  sec.  1. 

225  Ibid.,  sec.  2. 

226  West  v.  Lord  Sackville  [1903],  2  ch.,  378;  Beresford  v.  Attorney  General  (C.A.)  [1918],  P.,  33.    See 
also  Plummer  v.  Plummer  [1917],  P.,  163,  165. 

227  Yool  ».  Ewing  [1904],  Ir.  ch.,  434. 

*»  Gardner  v.  Gardner  (1877),  2  A.  C..  723.    There  is  a  special  declarator  of  bastardy  in  Scotland. 

}:»  Cooke  v.  Cooke  (1SS5),  4  De  G.  J.  &  S.,  704,  reversing  Gurney  v.  Gurney  (1855),  1  II.  &  M.,  413. 

"o  Campbell  v.  Corley  (1802).  31  L.  J.  Prob..  60. 

»>  Hawke  v.  Corn  (1820),  2  Consist.,  284.    See  a  brief  note  in  (1897)  103  L.  T..  381. 

»2  Thompson  v.  Rourke  [1892],  P.,  244  appears  to  be  the  last  case,  and  the  only  one  since  1862. 

133  Supra,  p.  4. 

•at  Fraser,  op.  cit.,  1238, 1244. 


THE  DECLARATORY  JUDGMENT.  41 

have  occasion  to  declare  the  validity  or  invalidity  of  a  marriage  235 
or  of  an  adoption.236  Mention  has  been  made  of  the  Wisconsin  stat- 
ute authorizing  the  declaration  of  the  validity  of  a  marriage  which 
has  been  doubted  or  disputed.237  The  Ontario  Marriage  Act  which 
gave  the  courts  of  Ontario  power  to  declare  marriages  valid  or  invalid 
was  finally  held  unconstitutional  in  Peppiatt  v.  P eppiatt 238  on  the 
ground  that  this  was  a  matter  solely  within  the  jurisdiction  of  the 
Dominion  Government. 

The  German  civil  code  and  code  of  civil  procedure  provide  expressly 
for  the  declaration  of  the  existence  or  nonexistence  of  a  marriage, 
of  the  relation  of  parent  and  child,  and  of  the  paternal  power  of  one 
of  the  parties  over  the  other.239  But  as  the  German  law  provides 
special  proceedings  both  for  the  annulment  of  void  and  of  voidable 
marriages,  the  special  declaratory  action  under  sections  633  and  638 
has  been  held  to  apply  only  to  a  limited  class  of  cases,  e.  g.,  when  a 
marriage  is  alleged  which  has  not  been  recorded ;  where  it  is  doubtful 
whether4 a  marriage  contract  or  ceremony  was  concluded,  or  whether 
a  marriage  has  been  annulled  abroad.  In  other  words,  the  intrinsic 
grounds  of  nullity  or  voidability  are  not  investigated  in  this  declara- 
tory action,  but  only  tormal  matters.  This  holds  true  more  or  less 
of  the  questions  affecting  legitimacy  under  sections  640  et  seq.,  which 
cover  such  matters  as  dates  of  birth,240  actual  legitimation,  or  other 
facts  which  may  be  established  by  investigation.  Questions  involv- 
ing the  substantive  law  of  legitimacy  and  paternal  power  may  be 
tried  by  the  regular  declaratory  actions. 

The  English  courts  under  their  power  to  construe  wills  and  deeds 
of  trust  under  Order  LIV,  A,  frequently  determine  incidentally  ques- 
tions of  status  and  relationship.241  Similarly,  the  county  judges  act- 
ing as  arbitrators  under  the  Workmen's  Compensation  Act,  1906, 
determine  questions  of  relationship  to  the  decedent  of  alleged 
dependents.242 

Among  the  numerous  other  questions  involving  the  declaration  of 
status  or  relationship  which  have  come  before  the  courts  are  the 
declaration  of  lunacy;243  the  judicial  declaration  of  death;244  of  the 
plaintiff's  right  to  be  restored  to  his  caste  ;245  that  plaintiffs  are  not 
members  of  a  certain  society;246  that  petitioner  be  declared  insol- 
es Aunjona  v.  Pralhad  (1870),  6  Bengal  L.  R.,  213;  Mussamat  v.  Mussamat  (1876),  25  Suth.  W.  R.,  444; 
Yamanabai  w,  Narayan  (1876),  1  Indian  L.  Rep.  Bombay,  164,  167.  Declaration  by  a  woman  and  her 
children  against  a  third  person  that  plaintiffs  are  the  wife  and  children  of  A,  a  living  person.  See  illustra- 
tion (h)  to  sec.  42  of  specific  relief  act,  1877,  Collett,  op.  cit.  222. 

»«  Kotomarti  v.  Kotomarti  (1874),  7  Mad.  351.    The  Civil  Procedure  Code  of  Ceylon,  1889,  sec.  217,  pro- 
vides for  declaratory  decrees  which  "declare  a  right  or  status."    1  Pereira,  op.  cit.  319. 
2"  Supra,  p.  32. 
*»»  (1916)  36  Ont.  L.  Rep.,  427. 

239  Code  of  Civil  Procedure,  sees.  633,  638,  640,  et  seq.    2  Gaupp-Stein,  op.  cit.  277  et  seq. 

240  (1911)  76  R.  G.,  283. 

2<1  e.  g.,  whether  a  certain  legatee  under  a  will  was  a  Roman  Catholic.  In  re  May  [1917]  2  Ch.,  126. 
Whether  plaintiffs  were  tenants  for  life  or  had  some  other  status  under  a  will.  In  re  Boyer's  Settled  Estates 
[1916|,  2  Ch.,  404.  The  frequent  determination  of  who  are  "lawful  issue"  (e.  g.,  In  re  timson  [1916],  2  Ch., 
362)  does  not  usually  involve  the  declaration  of  status. 

242  Simms  v.  Lilleshall  Coal  Co.  (C.  A.)  [1917],  2  K.  B.,  368. 

243  Usually  only  incidental  to  a  petition  for  the  appointment  of  a  curator  or  guardian.    This,  of  course, 
is  well  recognized  hi  our  law  where  commissions  are  appointed  upon  writs  in  the  nature  of  writs  de  lunatico 
inquirendo  to  determine  whether  the  subject  of  the  inquiry  is  a  lunatic  or  npt.     Burke  v.  Wheaton  (1828), 
3  Cranch  C.  C.,  341;  Cox  v.  Osage  County  (1890),  103  Mo.,  385, 15  S.  W.,  763.    See  also  Vuyk  v.  Vuyk  (1882), 
1  So.  Afr.  Rep.,  19;  In  re  I.  M.  (1913),  Queensland  W.  N.  case,  40.    For  a  declaration  of  sanity,  see  Mackin- 
tosh v.  Smith  &  Lowe  (1864,  Scot.),  2  M.,  389. 

244  Likewise  known  in  many  systems  of  law,  but  not  generally  as  an  independent  procedure  as  it  is,  e.  g., 
in  Germany  and  Ontario.     German  civil  code  (after  10  years'  absence),  sees.  13-18;  (1905)  60  R.  G.,  196, 
198.    In  Ontario,  seven  years'  absence  under  sec.  148  of  the  insurance  act,  re  Marshall  and  Ancient  Order 
of  United  Workmen  (1888),  11  O.  W.  R.,  1078;  12  ibid.,  153.    See  aldo  Pennsylvania,  Laws  1917,  ch.  193, 
p.  460. 

246  (India,  1876)  7  Suth.  Civ.  R.,  299. 
"•  (1882)  8  R.  G.,  3. 


42  THE  DECLARATORY  JUDGMENT. 

vent;247  that  plaintiffs  are  tenants  and  not  day  laborers;248  that  plain- 
tiff and  defendant  are  partners;249  that  defendant  is  a  trustee  for  the 
plaintiff;250  that  plaintiff  is  heir  to  another.251  When  such  judgments 
establish  a  new  status  or  relationship,  however,  they  are  investitive 
rather  than  purely  declaratory. 

CONSTRUCTION    OF    WRITTEN    INSTRUMENTS. 

One  of  the  most  fruitful  uses  of  the  declaratory  judgment  has  been 
found  to  lie  in  the  determination  of  the  validity  or  invalidity  or  of 
the  meaning  of  written  instruments.  Where  a  dispute  turns  upon  the 
construction  or  interpretation  of  a  document  or  written  instrument  it 
is  clear  that  amicable  submission  by  which  a  court  is  asked  to  declare 
its  effect  or  meaning  will  be  as  efficacious  in  determining  the  jural 
relations  of  the  parties  as  hostile  litigation.  The  English  act  of  July 
15,  1850,  therefore,  enabled  the  court  of  chancery  on  a  special  ques- 
tion stated  to  determine  "the  construction  of  any  act  of  Parliament, 
will,  deed,  or  other  instrument  in  writing,  or  any  article,  clause,  mat- 
ter or  thing  therein  contained."252  This  power  was  extended  by 
Order  LIV,  A,  of  the  supreme  court  rules  promulgated  in  1893  to 
include  "  a  declaration  of  the  rights  of  the  persons  interested"  in  such 
"deed,  will,  or  other  written  instrument,"  and  the  decision  is  obtaina- 
ble on  originating  summons.  The  court  may  direct  any  persons  inter- 
ested to  be  served  and  brought  in.  Tne  majority  of  the  declaratory 
judgments  now  rendered  in  the  chancery  division  involve  the  con- 
struction of  wills  and  deeds  of  settlement;  but  numerous  cases  may 
be  found  which  involve  the  interpretation  of  contracts,  leases,  mort- 
gages and  other  written  instruments,  including  even  statutes  and 
ordinances. 

The  power  to  construe  wills  without  the  issuance  of  any  decree  or 
order  constitutes  a  reform  of  vast  importance  when  one  recalls  the 
ruinous  and  prolonged  litigations  recorded  in  the  law  reports  of  the 
early  nineteenth  century,  the  issue  tried  involving  merely  the  con- 
struction of  a  will,  the  ascertainment  of  the  persons  entitled  to 
legacies,  or  the  proper  administration  of  an  estate.  Not  only  a 
trustee  or  executor,  but  any  person  interested  may  now  ask  for  a 
declaration  or  determination  of  any  question  arising  under  the  will 
in  whose  solution  he  is  interested.  A  few  of  our  States  now  admit 
bills  to  construe  wills  253  at  any  time  a  disputed  question  arises, 
whether  questions  of  trusts  are  involved  or  not.  The  procedure  is 
so  eminently  practical  and  useful  that  it  may  be  hoped  that  all  of 
our  States  will  soon  accept  this  modern  instrument  of  preventive 
justice. 

Perhaps  the  best  way  to  indicate  the  scope  of  this  power  of  con- 
struing wills  in  the  form  of  declarations  is  to  present  certain  illus- 
trative determinations  to  be  found  in  recent  decisions.  These  cases 

J<7  Usually  incidental  to  some  decree  for  appointment  of  receiver,  etc.  See  Indian  Code  of  Civil  Proc.i 
1882,  sees.  344,  351. 

2«8  (1886)  16  R.  G.,  390.  In  construing  a  bequest,  the  chancery  division  had  to  determine  whether  farm 
laborers  were  "servants."  In  re  Forrest  [1916],  2  Ch.,  386. 

2«  Edmonds  ».  Edmonds  (1903,  N.  Z.),  24  S.  C.  R.,  440. 

a*  Raser  v.  MsQuade  (1904),  11  Br.  Col.,  161.  See  also  In  re  Charteris  [1917],  2  Ch.,  257.  Such  an  action 
may  be  brought  in  the  United  States.  See  Donohoe  v.  Rogers  (1914),  108  Cal.,  700,  144  I'ac.,  958.  To 
effect  that  a  certain  man  was  a  "bare  trustee"  under  a  statute,  In  re  Blandy  Jenkins'  Estate  [1917],  1  Ch.46. 

"I  This  is  the  Scotch  declarator  of  heirship.  Menzies  v.  McKenna  (1914),  51  Sc.  L.  Rep.,  205.  But  it 
was  not  allowed  where  A  brought  declarator  against  B  that  B  was  not  the  heir  of  C,  deceased.  Officers 
of  State  v.  Alexander  (1866),  4  M.,  741;  (H.  L.)  6  M.,  54. 

252  Supra,  p.  7. 

253  Supra,  p.  30. 


THE   DECLARATORY  JUDGMENT.  43 

include  such  declarations  as  the  following:  The  destination  of  a  legacy 
on  the  death  of  the  legatee;254  whether  a  certain  bequest  constituted 
a  residuary  bequest;255  the  method  of  distribution  of  the  residuary 
estate;256  the  power  of  a  married  woman  to  make  "future"  mort- 
gages under  a  testamentary  devise  of  a  reversion  providing  for  a 
restraint  on  anticipation;257  whether  death  duties  were  to  be  paid  out 
of  a  specific  legacy  or  by  the  corpus  of  the  estate,258  and  other  ques- 
tions concerning  the  incidence  of  taxation;  whether  a  will  validly 
executed  a  power  of  appointment;259  whether  "lawful  issue"  is  con- 
fined to  children  or  includes  remoter  descendants;260  whether  plain- 
tiffs were  tenants  for  life  261  or  were  "servants"  within  the  meaning 
of  a  bequest;262  whether  the  bequest  of  an  annuity  charged  on  real 
estate  with  power  of  appointment  over  the  annuity  made  it  a 
"perpetual"  charge;283  whether  a  gift264  or  certain  trusts265  were 
valid  or  void ;  to  whom  certain  income  or  chattels  266  or  devises  of 
realty267  belonged;  the  quantity  of  the  estate -de  vised ; 268  whether 
plaintiff,  a  widow,  was  immune  from  any  defeasance  of  her  title  to 
a  legacy  in  case  she  married.269 

Similar  questions  arise  under  deeds  of  settlement  and  trust:  e.  g., 
whether  a  settler's  attempted  assignment  was  or  was  not  an  imper- 
fect voluntary  gift,270  or  was  void  as  against  his  creditors ; 271  whether 
certain  dividends  payable  in  stock  were  to  be  treated  as  capital  or 
as  income  and  who  was  entitled  thereto;272  whether  a  certain  gift 
was  within  the  exception  of  a  covenant  to  settle  after-acquired 
property;273  whether  plaintiff  had  power  to  disentail  without  con- 
sent ; 274  whether  a  settler  was  privileged  to  deduct  the  income  tax 
from  certain  gifts  in  trust;275  what  was  the  amount  and  character 
of  the  interest  settled  on  certain  beneficiaries,276  or  the  privileges 
and  immunities  derived  from  certain  marriage  settlements.277  Thus 
a  receiver  in  bankruptcy  of  a  cestui's  life  estate,  which  a  prospective 
purchaser  declined  to  take  on  the  ground  that  it  was  defeasible, 
obtained  a  declaration  that  he  had  power  to  convey  good  title  to 
an  indefeasible  life  estate.278 

2"  In  re  Harrison  (1918,  Ch.)  Weekly  Notes,  Mar.  30,  1918,  91. 

255  in  re  Gliddon  [1917],  1  Ch.,  174;  In  re  Woolley  [1918],  1  Ch.,  33. 

256  in  re  Walker  [1917],  1  Ch.,  38. 
25'  In  re  Chrimes  [1917],  1  Ch..  30. 

253  In  re  Kennedy  [1917],  1  Ch.,  9.  See  also  In  re  Scull  (1917,  C.  A.),  118  L.  T.,  7;  In  re  Palmer  [1916) 
2Ch.,  391. 

2w  in  re  Wilkinson's  Estate  [1917],  1  Ch.,  620;  Inre  Mackenzie  [1917],  2  Ch.,  58.  See  also  In  re  Wernher 
[1918],  1  Ch.,  339;  Redman  v.  Permanent  Trustee  Co.  (1917,  Aus.)  22  C.  L.  R.  84, 17  N.  S.  W.,  60. 

*»  In  re  Timson  (C.  A.)  [1910]  2  Ch.,  302. 

261  In  re  Boyer's  Settled  instates  [1910],  2  Ch.,  404. 

262  In  re  Forrest  |1910],  2  Ch.,  386. 

2«  Townseiid  v.  As-roft  [1917],  2  Ch.,  14. 

2«<  Atty.  Gen.  for  Xew  /calami  v.  Brown  (P.  C.)  [1917],  A.  C..  393;  Van  Kerkvoorde  v.  Hedley  (1917, 
N.  S.  W'.),  17  St.  Rep.,  205.  That  an  attempted  gift  over,  after  a  bequest,  was  void:  In  re  Dugdale  (1888), 
38  Ch.,  D.,  176. 

265  InreLodwi<*[191G],  2Ch.,  2(i;  Inre  Garnham  [1910],  2Ch.,  413;  InreMellody  (1917,  Ch.),  118  L.  T..  155. 

266  In  re  Eyre  [1917],  1  Ch.,  351;  In  re  Bercsford-Hope  [1917],  1'Ch.,  237. 

267  Redman  v.  Permanent  Trustee  Co.  (1917,  N.  S.  W.),  17  St.  Rep.,  60;  Falconer  Stewart  v.  Wilkie  (1892, 
Scot.),  19  R.,  030. 

268  Fletcher  v.  Rogers  (1853),  10  Hare  App.  XIII. 

269  This  is  one  of  the  few  French  cases  of  the  negative  form  of  declaration.    Herv6  (Paris,  Apr.  1, 1862), 
D.  02.  2,  77. 

270  Carter  v.  Hungerford  [1917],  1  Ch.,  2GO. 

2'i  In  re  Bulteel's  Settlements  [1917],  1  Ch.,  251. 

272  in  re  Hatton  [1917],  1  Ch.,  357;  In  re  Thomas  (C.  A.)  [1.916],  2  Ch.,  331. 

273  in  re  Thorne  [1917].  1  Ch.,  300. 

27<  In  re  Blandy  Jenkins's  Estate  [1917],  1  Ch.,  46. 
"5  Brooks  v.  Price  (C.  A .)  [1916),  2  Ch.,  345. 
««  Harvey  v.  Harvey's  Trustees  (ISfiO,  Soot.),  22  D.,  1310. 

«'  Mackenzie,  ».  Lady  Mary  Hanhury  (1846),  8  D.,  964;  Byam  v.  Byam  (1854),  19  Beav.,  58;  Smith  v. 
Smith's  Trustees  (1905),  12  S.  L.  T.,  782. 
*i»  In  re  Burroughs-Fowler  [1916|,  2  Ch.,  251. 


44  THE  DECLARATORY  JUDGMENT. 

Suits  are  frequently  brought  to  have  deeds  or  mortgages  declared 
invalid,  or  valid,279. when  their  validity  is  disputed.  So  mortgages 
and  deeds,  like  other  instruments,  occasionally  require  construction, 
e:  g.,  whether  upon  the  separation  by  deed  of  a  single  tenement  into 
two  tenements,  a  right  of  way  over  one  passed  to  the  grantee  of  the 
other  by  implication.280 

In  connection  with  bills  of  sale,  actions  have  been  brought  to  have 
them  declared  void281  and  to  construe  them.282 

Leases  have  frequently  been  construed.  Actions  have  been  brought 
to  have  them  declared  fictitious  or  void  as  against  the  interests  of 
the  plaintiff.283  The  judicial  power  to  construe  covenants  in  leases 
before  they  are  broken  and  before  damages  have  accrued  is  a  good 
illustration  of  the  efficacy  of  the  declaratory  judgment.  For  exam- 
ple, the  following  case  has  arisen  on  several  occasions:  Under  a 
lease  containing  a  covenant  against  assignment  by  the  lessee  without 
the  consent  of  the  lessor,  which  is  not  to  be  arbitrarily  withheld,  the 
lessee  has  wished  to  assign,  but  the  lessor  has  imposed  certain 
conditions  upon  the  grant  of  his  consent.  In  this  country  the  lessee 
might  make  the  assignment,  if  the  assignee  was  willing  to  take  it, 
and  thereby  invite  a  suit  on  the  covenant,  or  else  he  might  decline 
to  assign  and  forego  the  benefits  he  expected.  In  England  he  has  a 
third  alternative,  exceedingly  valuable,  which  enables  him  to  ask  the 
court  whether  the  landlord's  consent  is  unreasonably  withheld  or 
whether  the  landlord  has  the  power  to  impose  onerous  conditions 
upon  the  grant  of  his  consent.  In  several  cases  brought  by  lessees 
who  desired  to  assign  the  courts  made  such  declarations.284 

In  other  cases  declarations  have  been  made  as  between  lessor  and 
lessee  to  determine  on  whom,  under  a  covenant,  fell  a  loss  by  fire 
from  aircraft  bombs;285  that  a  certain  notice  of  termination  of  lease 
by  the  lessee  was  ineffectual  to  operate  as  a  surrender  and  that  the 
lease  was  still  subsisting;286  that  a  receiver  of  a  lessee  had  no  power 
to  deduct  from  the  rent  certain  income  taxes;287  that  a  lessee  was 
privileged  and  had  a  right  to  remove  timber  from  certain  leased  land, 
without  interference  by  the  defendant  lessor,  owner  under  a  land 
grant  from  the  Crown.288 

*»  As  to  deeds,  there  are  relatively  few  cases  in  England,  but  many  in  India.  Very  often  the  declara- 
tion is  merely  incidental  to  a  suit  to  set  aside  the  deed  declared  inva'id.  See  Pearce  v.  Bulteel  [1916],  2 
Ch.  544  (void  against  creditors).  Indian  cases:  Nuflsa  v.  Mahomed  (1876),  24  W.  R.,  336.  For  a  declara- 
tion that  a  deed  is  forged  see  Prasanna  v.  Mathuranath  (1871).  8  Bengal  L.  R.,  Append.  26;  15  W.  R.,  487. 
Suit  has  occasionally  been  brought  to  have  a  deed  declared  valid.  Phoolchunder  v.  Sheoranee  (1868),  9 
W.  R.,  104. 

Validity  of  a  mortgage,  In  re  Chrimes  [1917|,  1  Oh.,  30;  The  Mamr  [19031,  p.,  95  (where  the  declaration, 
however,  was  denied).  Invalidity  of  a  mortgage  as  against  creditors,  Chapman  t>.  Michaelson  [1908],  2 
Ch.,  612;  (C.  A.)  [1909]  1  Ch.,  238  (privilege  of  the  debtor:  immunity  of  the  trustee).  Inva'idity  of  a 
debenture  trust-deed  and  of  debentures  issued  thereunder:  Parian  Coast  Coal  Minos  (Ltd.)  v.  Arbuthnot 
(1917,  P.  C.),  117  L.  T.,  613.  For  cases  in  Germany  see  (1909)  71  R.  G.,  12  and  (1910)  74  R.  G.,  292. 

»su  Ni-holls  v.  Ni^holls  (1899,  Ch.),  81  L.  T.,  811.  See  also  Shaw  v.  Scottish  Widows'  Fund  Life  Ass. 
Soc.  (1917,  Ch.),  117  L.  T.,  697. 

281  That  the  bill  of  sale  did  not  truly  set  forth  the  consideration  for  which  it  was  given,  Parsons  v.  Equitable 
Investment  Co.  (C.  A.)  [1916],  2  Ch.,  527.  Purchaser  sued  for  a  declaration  that  a  contract  of  purchase 
was  void  because  of  the  vendor's  misrepresentations:  (1907)  65  R.  G.,  399.  403.  Declaration  that  an 
execution  sale  of  property  had  been  illegally  held:  Kripa  v.  Banehanidhi  (1913),  19  Calcutta  L.  J.,  388. 

J3J  Action  by  a  vendor  to  have  it  declared  that  the  purchaser  had  no  right  to  have  inserted  in  the  con- 
veyan^e  the  grant  of  a  certain  right  of  way.  In  re  Walmsley  and  Shaw's  Contract  [19171,  1  Ch.,  93. 

»»  Raghubar  v.  Bhaikdhari  (1869),  3  Bengal  L.  R.,  Append.  48;  Ram  v.  Rughoo  (1876),  1  Indian  L. 
Rep.,  Calcutta,  456. 

»•  Negative  declaration  of  defendant's  (lessor's)  disability  to  impose  onerous  conditions.  Young  v. 
Ashley  Gardens  Properties  (Ltd.)  [1903],  2  Ch.,  112;  Jenkins  v.  Price  [1907],  2  Ch'.,  229;  West  v.  Gwynno 
[1911),  2  Ch.,  1;  Evans  v.  Levy  [1901],  1  Ch.,  452;  Cornish  v.  Boles  (1914),  31  Ont.  L.  Rep.,  505.  In  some 
of  these  cases  the  declaration  asked  was  of  plaintiff's  power  to  assign  without  lessor's  consent. 

«*  Enlavde,  Ltd.,  v.  Roberts  [1917],  1  Ch.,  109. 

««  Burch  v.  Farrows  Bank  Ltd.  [1917],  1  Ch.,  606. 

^  In  re  Hayman,  Christy  &  Lilly,  Ltd.  (No.  2)  [1917],  1  Ch.,  545. 

*»  North  Pacific  Lumber  Co.  v.  British  American  Tr.  Co.  (1915),  23  Br.  Col.,  332,  340. 


THE  DECLAKATORY  JUDGMENT.  45 

Reference  has  already  been  made  to  various  cases  in  which  insurers 
have  sought  to  have  the  court  declare  the  invalidity  of  policies,  either 
before  any  loss  has  occurred  or  before  suit  has  been  brought  against 
them.289  Such  requests  for  declarations  are  almost  always  incidental 
to  a  bill  for  the  cancellation  or  delivering  up  of  the  alleged  invalid 
policy. 

In  a  number  of  cases  actions  have  been  brought  to  determine  the 
powers  of  unincorporated  associations  or  of  corporations,  involving 
a  construction  of  their  by-laws  or  articles  of  incorporation.  Thus 
questions  have  been  raised  for  declaration  whether  a  club  whose  object 
was  the  promotion  of  the  welfare  of  cyclists  had  power  to  devote 
a  part  of  its  funds  to  the  payment  of  an  annuity  to  its  retired  secre- 
tary;290 by  what  method  of  computation  the  fixed  value  of  certain 
shares  of  stock  in  a  closed  corporation  should  be  ascertained;291  and 
specific  declarations  have  been  sought  that  a  company  was  under  a 
duty  to  apply  its  profits,  after  certain  deductions,  to  the  payment  of 
cumulative  dividends;292  that  a  company  had  no  power  to  forfeit  fully 
paid  shares  on  the  ground  that  it  had  a  lien  on  them  for  the  enforce- 
ment of  a  claim  of  the  company  against  its  members,  and  this  even 
before  there  was  an  attempt  to  enforce  the  by-law  mentioned;293  or 
that  certain  resolutions  or  proposed  actions  were  ultra  vires. 204 

Contracts. — Probably  one  of  the  most  useful  functions  of  the  declara- 
tory judgment  in  preventing  litigation  lies  in  the  fact  that  it  enables 
parties  to  obtain  in  case  of  doubt  and  in  advance  of  the  necessity  of 
acting  upon  their  own  interpretation  of  their  obligations,  with  the 
resulting  invitation  of  a  lawsuit,  an  authoritative  judicial  interpreta- 
tion of  their  mutual  rights,  powers,  duties,  etc.,  under  written  instru- 
ments. In  the  modern  economic  world,  in  which  contracts  constitute 
the  normal  instrument  of  business  relations,  it  is  of  estimable  value 
to  have  at  the  disposal  of  the  parties  an  official  judicial  agency  to  which 
they  may  turn  at  any  time  to  settle  disputes  arising  in  the  performance 
of  the  contract.  In  England  and  some  other  countries,  in  order  to 
obtain  a  judicial  construction  of  a  contract,  it  is  unnecessary  to  resort 
to  the  crudity  of  breaking  it,  either  by  repudiation  or  otherwise,  or,  to 
avoid  a  lawsuit,  of  permitting  the  other  party  to  enforce  his  own  inter- 
pretation of  his  obligations  under  it.  Yet  in  this  country  we  are 
driven  to  this  extreme.  It  is  true  that  parties  now  frequently  provide 
their  own  forum  for  settling  differences  and  disputes  by  the  insertion 
of  arbitration  clauses  in  their  contracts,  but  this  is  still  exceptional 
and  lacks  some  of  the  authority  of  judicial  decision.  There  seems  no 
logical  reason  why  the  State,  instead  of  throwing  parties  upon  the 
necessarily  unauthoritative  advice  of  counsel  and  thus  often  nourish- 
ing the  seed  of  a  difference  of  interpretation  into  a  full-grown  lawsuit, 
should  not  furnish  an  official  forum,  its  regular  courts,  for  the  settle- 
ment of  differences  arising  out  of  the  construction  and  interpretation 
of  contracts. 

Before  taking  up  some  of  the  illustrations  of  this  useful  function 
of  the  courts  in  other  countries,  attention  may  be  directed  to  their 
power  to  determine  and  declare  the  legal  character  of  writings  whose 

«» Supra,  p.  31. 

!M  Cyclists  Touring  Club  v.  Hopkinson  (1910),  101  L.  T.,  848. 
!»'  Collins  v.  Sedgwick  (1917],  1  Ch.,  179;  see  also  in  re  Condran  [1917],  1  Ch.,  639. 
«»s  Evling  v.  Israel  and  Oppenheimer,  Ltd.  (1917,  Ch.),  118  L.  T.,  99. 
sss  Hopkinson  v.  Mortimer,  Harley  &  Co.,  Ltd  |1917],  1  Ch.,  (146. 

an  Cope  v.  Crossingham  [1908],  2  Ch.,  624,  637;  (C.  A.)  [1909),  2  Ch.,  148.    Grainger  v.  Order  of  Canadian 
Home  Circles  (1914),  31  Ont.  L.  Rep.,  461. 


46  THE  DECLARATORY  JUDGMENT. 

nature  is  uncertain  or  disputed.  Thus,  the  courts  of  England  or  of 
her  colonies  have  been  asked  to  determine  whether  certain  letters  and 
memoranda  constituted  a  contract; 295  whether  certain  regulations  of 
the  colonial  office  and  the  spending  of  money  by  plaintiff  in  reliance 
thereon  constituted  a  contract; 296  whether  a  certain  indorsement  on 
an  insurance  policy  amounted  to  a  valid  assignment  thereof; 297  whether 
a  certain  document  constituted  a  settlement 298  or  a  valid  will; 2"  and 
whether  certain  entries  in  books  were  "advances"  in  the  sense  of  the 
testator's  will.300 

Coming  now  to  the  numerous  questions  which  have  involved  the 
construction  and  interpretation  of  contracts,  actions  have  on  several 
occasions  been  instituted  for  a  declaration  that  a  certain  contract  was 
no  longer  binding  on  the  plaintiff  or  was  binding  on  the  defendant. 
Among  the  former  of  these  cases,  which  seeks  a  negative  declaration 
of  privilege  (absence  of  duty),  the  case  of  Societe  Maritime  et  Com- 
merciale  v.  Venus  Steam  Shipping  Co.  (Ltd.).301  is  a  leading  one.  Here 
the  plaintiffs  had  undertaken  by  contract  to  load  ore  on  steamers  to 
be  furnished  by  one  L.,  the  alleged  assignor  of  the  defendants,  for 
five  years.  The  plaintiffs  claimed  that  there  was  no  valid  assignment 
to  the  defendants,  that  L.  was  not  the  defendants'  agent,  and  that 
there  was  no  novation.  As  the  original  contract  had  over  a  year  still 
to  run,  and  as  plaintiffs  did  not  wish  to  break  it  and  subject  themselves 
to  an  action  for  damages,  they  availed  themselves  of  the  valuable 
orivilege  of  seeking  from  the  court  a  declaration  that  the  contract  was 
no  longer  binding  on  them.  In  making  the  declaration  sought, 
Channell,  J.,  remarked: 

Showing  a  necessity  of  a  decision  upon  it,  I. think  they  are  entitled  to  a  declaration 
as  to  whether  or  not  the  contract  is  binding  upon  them.  They  are  not  bound  at  their 
peril  to  perform  it  and  then  to  be  liable  to  heavy  damages  for  not  performing  it  for  the 
space  of  the  next  one  and  one-half  years.  If  they  are  wrong,  they  would  be  liable  for 
damages  down  to  the  time  of  the  judgment  of  the  court  while  they  are  refusing  to 
perform;  but  upon  the  court  saying  that  they  were  bound,  they  would  then  say: 
"We  will  now  go  on  with  it  for  the  remainder  of  the  time."  I  think  that  is  a  sufficient 
reason  [for  making  the  declaration].302 

So  declarations  have  been  sought  that  a  contract  was  not  binding 
because  the  promisee  was  a  money  lender  not  registered  according  to 
law;303  or,  in  Germany,  because  it  was  not  authenticated  by  a  notary.304 
On  the  other  hand,  declarations  have  been  sought  that  contracts  were 
binding  which  the  promisor  had  either  repudiated  or  threatened  to 
repudiate.  In  this  case  the  declaratory  action  is  a  milder  substitute 
for  the  executory  action,  but  has  a  special  advantage  when  the  con- 
tract is  one  involving  a  continuous  performance  and  no  interruption 
or  substitution  of  damages  for  performance  is  desired.305 

The  great  importance  of  this  power  to  make  declarations  of  the 
jural  relations  of  parties  under  a  contract  has  been  strikingly  illus- 

»*  Lovesy  ».  Palmer  [1910],  2  Ch.,  233. 

296  Lantour  v.  Atty.  Gen.  (18B5),  5  N.  R.,  102.  231. 

2"  In  re  Williams  (C.  A.)  [19171,  1  Ch.,  1. 

298  Simpson  v.  Commissioner  of  Stamp  Duties  (1917,  N.  S.  \V.),  17  St.  Rep.,  217. 

29»  Badenach  v.  Inelis  (1913),  29  Ont.  L.  Rep.,  165. 

*»  In  re  Deprez  [1917],  1  Ch.,  24. 

301  (1904),  9  Com.  Cas.  289. 

302  See  also  West  Ham  Cprp.  v.  Sharp  [1907],  1  K.  B.,  445;  Hulton  v.  Hulton  [1916],  2  K.  B.,  642  (declaration 
sought  by  a  married  woman  that  she  was  not  bound  by  a  certain  contract  of  separation  obtained  from  her 
by  fraud);  to  the  same  effect,  see  Slin?erland  v.  Slin?erland  (1910),  109  Minn.,  407,  410,  124  N.  W.,  19. 

«"  Lod^e  v.  National  Union  Investment  Co.  (Ltd.)  [1907],  1  Ch.,  300  (not  granted). 

so<  (1910)  73  R.  G.,272. 

"*  Holt  v.  A.  E.  G.  Electric  Co.  [1918],  1  Oh., 320  (Controller  of  Enemy  Property  claimed  that  he  was  not 
bound  by  agreement  for  services  between  plaintiff  and  defendant  company.  Plaintiff's  request  for  a 
declaration  that  he  was  so  bound  was  granted).  See  also,  for  Germany,  (1906)  62  R.  G.,  417. 


THE  DECLARATORY  JUDGMENT.  47 

tratcd  during  the  last  few  years  when  the  English  courts  have  been 
called  upon  to  declare  the  effect  of  the  war  on  contracts  of  various 
kinds.  Parliament  assisted  this  judicial  function  by  providing  in  the 
Legal  Proceedings  Against  Enemies  Act,  1915,  that  a  British  subject 
or  corporation  might  claim  a  declaration  against  an  enemy  subject  or 
corporation,  provision  being  made  for  substituted  service,  "as  to  the 
effect  of  the  war  on  rights  or  liabilities  under  a  contract  entered  into 
before  the  war."  Numerous  cases  of  this  kind  have  arisen.  In  the 
recent  case  of  Ertel  Bieber  &  Co.  v.  Rio  Tinto  Co.  (Ltd.)308  the  plain- 
tiffs, an  English  company  owning  copper  mines  in  Spain,  had  con- 
tracted before  the  war  to  sell  ore  to  German  companies  over  a  number 
of  years.  The  contract  contained  a  suspensory  clause  providing  that 
if  owing  to  war  the  sellers  should  be  prevented  from  shipping,  the 
obligation  should  be  suspended  during  the  continuance  of  the  impedi- 
ment. When  war  broke  out  part  of  the  contract  was  still  unexecuted. 
The  plaintiffs  claimed  a  declaration  that  the  war  had  terminated  and 
not  merely  suspended  the  contract.  The  House  of  Lords  granted  the 
declaration  on  the  ground  (1)  that  performance  had  become  illegal 
during  the  war,  and  (2)  that  the  suspensory  clause  was  void  because 
it  was  against  public  policy  that  an  English  company  should  be  bound, 
even  after  the  war,  to  confer  an  advantage  on  a  Germany  company.307 

Some  other  cases  involve  equally  interesting  questions.  In  Metro- 
politan Water  Board  v.  Dick  Kerr  &  Co.308  the  performance  of  a  con- 
tract for  the  construction  of  a  reservoir  was  interrupted  by  the 
minister  of  munitions,  who  ordered  the  defendants  to  cease  work,  to 
remove  a  large  part  of  the  plant  (which  by  the  contract  was  to  belong 
to  the  plaintiffs),  and  to  sell  it  on  behalf  of  the  Government  to  certain 
munition  factories.  Defendants  asserted  that  by  reason/of  the  stop- 
page of  the  work  and  the  uncertain  duration  of  the  war  the  contract 
was  terminated,  whereupon  the  plaintiffs  sought  a  declaration  that 
the  contract  was  suspended  but  not  terminated,  and  that  they  were 
entitled  to  the  proceeds  of  the  plant  when  sold.  The  court  of  appeal 
denied  the  declaration  and  held  the  contract  terminated,  reading  into 
the  contract  an  implication  that  defendants'  obligations  under  it 
should  cease  if  the  Government  made  performance  illegal  or  im- 
possible.309 

Among  the  various  kinds  of  contracts  which  have  recently  received 
interpretation  by  declaration  mention  may  be  made  of  the  following: 
In  a  contract  for  services,  where  plaintiff  was  to  be  paid  by  a  per- 
centage of  the  net  profits,  the  question  was  raised  tor  declaration 
whether  the  excess-profits  duty  was  to  be  deducted  in  order  to  arrive 
at  the  net  profits;310  in  Stretch  v.  Scout  Motors,  (Ltd.)311  plaintiff 
sought  and  obtained  a  declaration  of  immunity  from  the  forfeiture  of 
a  war  bonus  payable  for  not  leaving  defendants'  service,  on  the 
ground  that  he  did  not  leave  voluntarily  but  had  been  ordered  to 
leave  by  the  minister  of  munitions.  Two  recent  cases  arose  under 

*»>(H.  L.)  [1918]  A.  C.  260. 

«»  See  also  Zinc  Corporation  (Ltd.)  v.  Hirsch  (C.  A.)  [1915],  1  K.  B.,  541;  Orconera  Iron  Ore  Co.  (Ltd.) 
v.  Fried- Krupp  A.  G.  (1918,  C.  A.),  118  L.  T.,  237.  In  Hugh  Stevenson  &  Sons  (Ltd.)  v.  A.  G.  fur  Carton- 
na^enindustrie  [1918]  A.  C.,  239,  the  House  of  Lords  declared  the  termination  of  a  partnership  and  the 
right  of  the  German  partners  to  share  after  the  war  in  a  certain  part  of  the  profits  derived  during  the  war 
from  their  share. 

HK(C.  A. )  [1917]  2  K.  B.,1. 

sea  See  also  for  other  declarations  of  the  effect  of  war  on  different  contracts:  Marshall  v.  Glanvill  [1917], 
2  K.  B.,  87  (agency);  Smith,  Coney  &  Barrett  v.  Becker,  Gray  &  Co.  (C.  A.)  [1916],  2  Ch.,  86:  Tingley  v. 
Muller  [1917],  2  Ch.,  144  (sales);  Seliijman  v.  Eagle  Insurance  Co.  [1917],  1  Ch.,  519  (insurance). 

no  S.  J.  &  E.  Fellows  (Ltd.)  v.  Corker  [1918],  1  Ch.,  9:  Thompson  Bros.  &  Co.  v.  Amis  [1917],  2  Ch..  211. 
But  see  William  Hollins  &  Co.  v.  Paget  [1917],  1  Ch.,  187. 

""  (1918,  K.  B.)  144  L.  T.,  425. 


48  THE  DECLARATORY  JUDGMENT. 

freight  contracts.  In  one,  a  ship  bound  from  Tampa,  Fla.,  to  Ham- 
burg was  compelled  by  the  outbreak  of  war  to  put  into  an  English 
port,  and  the  owners  sought  a  declaration  that  as  the  further  prose- 
cution of  the  voyage  became  illegal,  they  were  entitled  to  freight 
money  from  the  defendants.312  In  the  other,  the  master  had  aban- 
doned a  torpedoed  ship  which  was  ultimately  brought  into  port  by 
salvors.  The  owners  of  certain  cargo  on  board  sought  a  declaration, 
which  was  granted,  that  in  view  of  the  master's  abandonment,  they 
were  entitled  to  the  cargo  without  payment  of  freight.313 

Statutes. — Statutes,  executive  regulations,  and  ordinances  are  some- 
what analogous  to  written  instruments,  and  their  construction  or 
interpretation  has  frequently  been  involved  in  the  course  of  actions  for 
a  declaration  of  jural  relations.  The  Scotch  courts  have  said  that 
they  will  not  make  abstract  interpretations  of  statutes  ;314  this  is  prob- 
ably true  of  all  courts.  But  if  the  determination  of  a  certain  right, 
privilege,  power,  or  immunity requires  the  construction  or  interpreta- 
tion of  a  statute,  there  seems  no  valid  reason  why  it  should  not  be 
made  in  declaratory  actions  as  it  is  in  executory  actions.315 

Among  recent  declaratory  judgments  in  England  which  directly 
involved  the  construction  of  statutes  we  may  mention  In  re  Monck- 
ton's  Settlement,316  determining  that  plaintiff  had  the  power  of  a 
tenant  for  life  under  the  Land  Settlements  Acts,  1882  and  1890;  Flint 
v.  Attorney  General,317  declaring  that  plaintiff  as  a  minister  was  not 
exempt  from  military  service  under  the  Army  Act,  1881,  and  Military 
Service  Act,'  1916 ;  In  re  Moxon,318  declaring  that  the  applicant  trustee 
had  the  power  to  appoint  the  public  trustee  as  sole  trustee  in  his  stead 
under  the  Trustee  Act,  1893;  In  re  Renishaw  Iron  Co.  (Ltd.),319  declar- 
ing that  workmen  could  bring  actions  under  the  Workmen's  Com- 
pensation Act,  1906,  directly  against  the  insurance  companies  with 
whom  their  bankrupt  employers  had  insured  their  liability  to  compen- 
sation; and  other  cases  too  numerous  to  mention  in  detail.320 

Such  actions  have  long  been  customary  in  Scotland,  where  declara- 
tions of  liability  or  disability  have  been  sought  and  maintained  against 
public  authorities  under  the  Canal  Act,321  the  Railway  Act,322  the 
Burgh  Police  (Scotland)  Act,  1892,323  and  other  acts.324  Declarator 
appears  to  be  the  usualprocedure  in  Scotland  for  trying  the  legality 
of  the  acts  of  public  officers. 

i«  St.  Enoch  Shipping  Co.  (Ltd.)  v.  Phosphate  Mining  Co.  [1916],  2  K.  B.,  624. 

«-  Newsmn  v.  Bradley  (1917,  C.  A.),  118  L.  T.,  78.  For  the  interpretation  of  certain  other  contracts 
see  In  re  Blalce  [1917],  1  Ch.,  18  (effect  of  unexecuted  contract  of  sale  on  a  testator's  property,  whether  it 
was  realty  or  personalty);  Dyson  v.  Peat  [1917],  1  Ch.,  99  (agency).  For  an  interesting  German  case  see 
(1S37)  4D  R.  G.,  97  (contract  of  two  former  partners  not  to  engage  in  competing  business:  one  sought  a 
declaration  that  he  was  privileged  to  become  an  employee  without  violating  the  contract;  it  was  not 
granted). 

>»  Balfour  v.  Malcolm  (1842),  1  Bell  Apn.,  163;  Todd  and  Higginbotham  v.  Burnet  (1854),  16  D.,  794. 

si-  This  was  expressly  held  in  the  Scotch  case  of  Sullivan  v.  Close  (1898),  6  Sc.  L.  T.,  2,  "if  the  pursuer 
[plaintilT]  shows  an  interest  to  have  the  meaning  declared."  See  the  English  Act  of  1850,  supra,  p.  7. 

«« [1917]  1  Ch.,  224. 

M'  [19isj  1  Ch.,  216. 

MI  [1916]  2  Ch.,  595. 

M'[l»17]  iCh.,  199. 

»•>  See  in  re  Wells  and  Hopkinson's  Contract  [1916]  2  Ch.  289;  In  re  Scott  (C.  A.)  [1916]  2  Ch.  268;  Taff 
Vale  liy.  Co.  v.  Cardiff  Ry.  Co.  (C.A.)  [1917]  1  Ch.  299;  Ellis  v.  Duke  of  Bedford  (C.  A.)  [1899]  1  Ch.  499, 
515. 

••*'  Ma?donell  v.  Caledonian  Canal  Commissioners  (1830),  8  S.  881;  Tennant  v.  Turner  (1837)  16  S.  192. 

»M  i  ilasgow  City  &  Dist.  Ry.  Co.  v.  Magistrates  of  Glasgow  (1884)  11  R.  1110. 

wa  Teanent  v.  Commissioners  (1894),  31  Sc.  L.  Rep.,  619. 

"<  eith  Police  Commissioners  v.  Campbell  (1866),  5  M.,  251;  British  Fisheries  Soc.  v.  Magistrates  of  Wick 
(1<72),  10  M.,  426;  Stewart  v.  Parochial  Board  of  Keith  (1869),  8  M.,  26;  Hogg  u.  Parochial  Board  of  Auchter- 
m  iciity  (ISbO),  7  R.,  986. 


THE  DECLARATORY  JUDGMENT.  49 

The  validity  or  effect  of  various  executive  regulations  has  recently 
been  under  examination  in  declaratory  actions  brought  by  private  indi- 
viduals whose  privileges  or  immunities  depended  upon  the  construc- 
tion of  such  regulations  or  the  legality  of  powers  exercised  under 
them.325  The  determination  of  the  invalidity  of  a  municipal  ordinance 
is  occasionally  sought  by  declaratory  action.326 

Probably  in  no  other  country  is  legislation  so  frequently  held  uncon- 
stitutional as  in  the  United  States.  Judgments  holding  statutes  or 
ordinances  unconstitutional  are  in  effect  declaratory.  In  practice, 
however,  the  judgment  usually  includes  some  decree,  though  preceded 
by  a  declaration.  The  power  to  render  declaratory  judgments  might 
have  shortened  considerably  the  complicated  procedure  by  way  of 
injunction,  already  litigated  before  three  different  courts,327  through 
which  the  New  York  American  is  endeavoring  to  prevent  the  enforce- 
ment of  different  ordinances  enacted  by  the  municipal  authorities  of 
Mount  Vernon,  N.  Y.,  designed  to  bar  the  Hearst  newspapers  from 
sale  in  Mount  Vernon.  The  actual  issue  involves  merely  the  consti- 
tutionality of  the  principal  ordinance.  In  countries  having  a  similar 
system  of  judicial  control  over  legislation,  the  unconstitutionality  of  a 
particular  statute  has  been  maintained  in  the  form  of  a  declaratory 
action  and  judgment.328 

Even  the  meaning  of  the  judgment  or  decree  of  a  court329  or  of  the 
ambiguous  award  of  arbitrators330  may  be  sought  by  declaratory 
action.  It  is  doubtful,  however,  whether  its  validity  can  be  attacked 
in  this  form,331  inasmuch  as  codes  of  procedure  usually  provide  means 
for  setting  aside  invalid  judgments  or  awards. 

TITLE   TO   PROPERTY. 

One  of  the  questions  for  the  determination  of  which  the  declaratory 
judgment  has  proved  most  adaptable  is  the  matter  of  conflicting  or 
doubtful  claims  of  title  to  land  or  of  any  right,  privilege,  power,  or 
immunity  with  respect  to  land.  The  history  of  the  simplification  of 
procedure  for  trying  title  encourages  the  hope  that  the  more  general 
reform  in  procedure  involved  in  the  declaratory  judgment  will  ulti- 
mately obtain  sufficient  support  to  secure  its  legislative  recogniton. 
From  the  former  very  technical  real  action  by  which  questions  of 

«*>  Whether  a  certa  in  regulation  came  into  effect  at  the  date  of  its  signature  or  of  its  publication,  Johnson 
v.  Sargent  &  Sons  (1917,  K..  B.),  118  L.  T.,  95;  effect  of  treasury  regulations  for  deposit  of  securities,  In  re 
Oppenheimer  [1917],  1  Ch.,  274;  claimant's  privilege  of  not  giving  certain  information  under  a  printed 
form  to  Inland  Revenue  Commissioners,  Dvson  v.  Attorney  General  (C.  A.)  [1911]  1  K.  B.,  410;  invalidity 
of  regulations  of  shipping  controller  requisitioning  services  (not  ships)  of  owners  and  appropriating  their 
profits,  China  Mutual  Steam  Navigation  Co.  (I  td.)  v.  Mac!  ay  [1918],  1  K.  B.,  33. 

MS  See  Bourgon  v.  Township  of  Cumberland  (1910),  22  Ont.  L.  Rep.,  256.  Hair  v.  Town  of  Medford  (1914 
A.  P.),  31  Ont.  L.  Rep.,  124. 

«'  Star  Co.  v.  Brush,  N.  Y.  Law  Journal,  Sept.  12,  1918. 

a"  See  Colonial  Sugar  Refining  Co.  v.  Any.  Gen.  (1912),  Australia  15  C.  L.  R.,  182.  The  Ontario  Judica- 
ture Act  (R.  8.  0. 1914,  c.  56,  sec.  20)  authorizes  the  Supreme  Court  at  the  instance  of  the  Attorney  General 
for  Canada  or  of  Ontario  to  make  a  "  declaration  as  to  the  validity  of  any  statute  *  *  *  though  no  further 
relief  be  prayed  or  sought."  See  Atty.  Gen.  for  Canada  v.  Atty.  Gen.  of  Ontario  (1893),  23  Can.  S.  C.,  458, 
and  annotations  of  this  section  in  Snider's  Annotations  (1914),  p.  102.  This  is  in  the  nature  of  an  advisory 
opinion,  although  the  st  .tute  calles  it  a  "judgment."  Under  the  United  States  Constitution  such  a 
declaration  would  ha/et  j  involve  a  litigated  "case"  or  "controversy"  between  private  parties.  Muskrat 
v.  United  States  (1911),  219  U.S.  346,  41  Sup.  Ct.  250.  In  Shredded  Wheat  Co.  v.  City  of  Elgin  (1918,  111.), 
120  N.  E.,  218,  the  plaintiff  sought  to  enjoin  the  enforcement  of  a  municipal  ordinance  on  the  ground  of 
its  unconstitutionaiity.  The  court  refused  to  pass  upon  the  ordinance  until  the  plaintiff  had  undertaken 
to  violate  it  and  prosecution  been  begun  to  recover  a  penalty  under  it.  If  invalid,  said  the  court,  the  prosecu- 
tion would  fail  and  the  plaintiff  would  not  be  injured;  if  valid,  there  was  no  ground  on  which  its  enforce- 
ment should  be  enjoined.  The  benefits  of  the  declaratory  jud  onent  procedure  in  such  a  case  are  apparent. 

w»  Ross  v.  At  iCKcn  ie  1,1836),  14  S..  845;  Parke's  Curator  (Barstow)  v.  Black  (1870),  8  M.,  671. 

MO  Lofthouse  C  )lliery  v.  Ogden  11913],  3  K.  B.,  120. 

«i  Although  this  has"  been  done  in  India,  where  judgment  was  rendered  against  a  minor  without  appoint- 
ment of  a  guar^i'in  ad  litem.  Purno  v,  Maharajadhiraj  (1913),  18  Calcutta  L.  J.,  18. 

107908—19 4 


50  THE  DECLARATORY  JUDGMENT. 

ownership  of  realty  were  decided  we  came  to  the  mixed  action  of 
ejectment,  used  first  to  decide  questions  of  possession  and  then  indi- 
rectly to  determine  questions  01  title  under  the  fiction  of  a  decision 
merely  as  to  the  right  of  possession.332  While  in  some  of  our  States 
this  is  still  the  method  of  trying  the  title  to  land,  England  has  not 
stopped  her  progress.  The  action  for  the  recovery  of  land  under  the 
Judicature  Acts,  while  primarily  directed  to  the  recovery  of  possession, 
also  enabled  the  plaintiff  to  apply  for  a  declaration  that  he  is  entitled 
to  the  land,  while  a  claimant  to  possession  in  fee  simple  has  been  able 
to  do  so  since  1862.333  Since  1883,  the  usual  method  of  trying  title 
or  any  of  the  constituent  jural  relations  with  respect  to  land,  e.  g.,  the 
right  to  walk  over  another's  land  or  the  privilege  of  freedom  from  the 
right  of  another,  has  been  by  declaratory  action.  The  equitable  biHs 
to  quiet  title  and  particularly  the  bill  to  remove  cloud  from  title,  to- 
gether with  the  modern  statutory  suit  to  quiet  title,  serve  in  many  of 
our  States  to  try  disputed  questions  of  title.934  But  these  remedies 
are  subject  to  various  limitations,  and  the  two  former  serve  only  as 
incidental  to  some  executory  relief.  The  statutory  suit  to  quiet 
title,  which  in  some  States  (e.  g.,  Connecticut),  includes  within  its 
purview  personal  as  well  as  real  property  and  may  be  instituted  by  a 
person  in  or  out  of  possession  claiming  any  kind  of  contested  interest 
m  the  land,  offers  a  close  approach  to  the  action  for  declaration  of 
title,  and  should  be  adopted  by  all  of  our  States. 

The  questions  relating  to  rights  and  other  legal  relations  in  respect 
to  property  determined  by  declaratory  judgment  often,  although  by 
no  means  usually,  arise  under  wills  or  settlements,  and  to  some  extent 
have  already  been  considered.  They  may  be  brought  to  determine 
adverse  claims  to  the  same  interest  in  the  land,  by  the  person  in  or 
out  of  possession  or  claiming  some  interest  in  order  to  obtain  a  deter- 
mination and  confirmation  of  his  interest  or  of  his  freedom  from 
interference  with  that  interest  by  some  adverse  claimant. 

Among  adverse  claimants  to  the  same  interest,  questions  of  con- 
flicting title  frequently  come  before  land  registration  officers  in 
countries  where  the  State  determines,  registers,  and  guarantees  the 
title.  In  this  country,  whore  the  Torrens  system  is  not  yet  compul- 
sory, and  in  England,  this  kind  of  declaration  is  of  little  importance. 
In  Ireland  the  Landed  Estates  (and  Land  Judges')  Court  has  jurisdic- 
tion to  make  declarations  of  title.  In  India  the  question  is  fre- 
quently raised  under  section  283  of  the  code  of  civil  procedure  by 
persons  claiming  interests  in  property  under  attachment;  in  this 
country  that  is  possible  in  some  States  by  sheriff's  jury.335  But  in 
India  no  declaration  of  title  can  be  obtained  by  virtue  of  the  general 
power  to  make  declaratory  decrees  under  the  Specific  Relief  Act  if  the 
plaintiff  might  have  obtained  any  coercive  relief.  Under  section  17 
<of  the  English  Married  Women's  Property  Act,  1882,  if  a  question 
arises  between  husband  and  wife  as  to  the  title  or  possession  of  prop- 
erty, either  party  may  apply  by  originating  summons  for  an  order 
determining  such  question.336  We  have  already  adverted  to  the 
fact  that  in  many  of  our  States  the  statutory  suit  to  quiet  title  serves 
as  the  best  means  of  trying  disputed  questions  of  title. 

'» See  Segdwiek  and  Wait,  The  History  of  the  Action  of  Ejectment,  in  3  Essays  in  Anglo-American 
Legal  History,  611,  636. 

"»  25  &  26  Viet.  ch.  67,  sec.  48.    See  also  Gledhill  v.  Hunter  (1880),  14  Ch.  D.,  492. 
«M  Supra,  p.  30. 
»*>  Supra,  p.  29. 
"« In  re  Married  Women's  Property  Act,  1882  (C.  A.)  [1917],  2  K.  D.,  72. 


THE  DECLARATORY  JUDGMENT.  51 

Declaratory  judgments  upon  adverse  claims  to  interests  in  land 
have  dealt  with  many  varieties  of  questions,  including  conflicting 
claims'by  the  public  and  by  private  individuals  to  the  fee  of  a  road, 
one  asserting  it  to  be  a  public,  the  other  a  private  road;337  conflicting 
claims  of  private  individuals  to  the  same  realty338  or  to  the  same 
privilege  under  lease  or  license.339 

Declarations  have  also  been  sought  to  determine  the  nature  of  the 
claimant's  interest  in  certain  land,  e.  g.,  of  a  reversionary  lessee  whose 
term  was  to  commence  more  than  twenty-one  years  after  its  date ;  34° 
the  amount  of  claimant's  share  in  property;  341  or  the  quantity, 
quality,  or  priority  of  plaintiff's  or  defendant's  tenure 342  or  interest.343 

It  often  becomes  of  importance  to  a  person  who  claims  title  to 
land  and  the  power  to  convey  it  to  obtain  from  a  court  a  judicial 
declaration  and  confirmation  of  his  title  as  an  assurance  to  a  prospec- 
tive vendee  that  he  is  not  purchasing  a  defective  or  unmarketable 
title.  This  valuable  function  of  the  declaratory  judgment  has  been 
invoked  on  several  occasions,  generally  by  the  vendor  344  but  occa- 
sionally by  the  vendee  who  asks  a  declaration  that  he  is  under  no 
duty  to  take  a  defective  title.345  Often  such  a  request  for  a  confir- 
mation of  title  serves  merely  purposes  of  general  assurance,346  but  it 
is  probable  that  it  will  not  be  granted  unless  the  title  is  in  danger  of 
question  or  attack.347  Reference  has  already  been  made  to  the  fact 
that  in  some  jurisdictions  a  claimant  to  title  by  adverse  possession 
may  obtain  a  judicial  confirmation  of  his  title.348 

The  action  for  the  establishment  of  title  or  of  some  incidental  legal 
relation  is  often  brought  in  the  form  of  a  request  for  a  negative  dec- 
laration of  privilege  or  immunity  as  against  the  defendant.  Before 
1883,  such  an  assertion  of  privilege  or  immunity  was  not  granted  in 
England,  because  the  plaintiff  was  said  to  have  no  cause  of  action. 
Only  by  the  equitable  remedy  of  removal  of  cloud  from  title,  within 
its  limited  scope  and  conditions,  was  relief  obtainable.  So  in  Rooke  v. 
Kensington,349  where  the  plaintiff  asked  a  declaration  that  his  legal 

»"  Gooderham  ».  City  of  Toronto  (1891),  21  O.  R.,  120;  19  A.  R.,  641;  The  Mayor,  etc.,  of  Lower  Hutt  v. 
Yerex  (1904,  N.  Z.),  24  S.  C.,  697;  Chuni  v.  Ram  (1888),  15  Indian  L.  Rep.,  Calcutta,  460. 

sss  In  re  Alston  [1917]  2  Ch.  226;  In  re  Bogg  |1917]  2  Ch.  349;  Grierson  v.  Sandstring  School  Board  (1882) 
9  R.  437;  Redman  v.  Permanent  Trustee  Co.  (1917,  N.  S.  W.)  17  St.  R.  60;  Nasir  v.  Arman  (1912),  17  Cal- 
cutta L.  J.  118;  Rameshevar  v.  Provabati  (1914),  20  Calcutta  L.  J.  23:  (1900)  48  R.  G.,  367,  370. 

339  North  Pacific  Lumber  Co.  Ltd.  v.  British-American  Trust  Co.  Ltd.  (1915),  23  Br.  Col.,  332;  (1898)  41 
R.  G.,  345.  The  German  courts  at  one  time  espoused  the  view  that  there  was  no  "legal  relation"  between 
two  adverse  claimants  to  the  same  res. 

8«  Mann,  Grossman  &  Panlin,  Ltd.,  v.  Registrar  of  Land  Registryf  1918],  1  Ch.,  202. 

8<i  Kennedy  v.  Dodson  [1895],  1  Ch.  334;  Boboo  v.  Mitarjit  (1872),  8  Bengal  L.  R.,  382;  Brij  v.  Durga  (1898), 
20  Indian  L.  Rep.,  Allahabad,  258. 

s«  Kali ».  Golam  (1886),  13  Indian  L.  Rep.,  Calcutta,  3;  Re  Darnley's  Estate  (1870,  Ireland),  3  Irish  L.  T., 
Misc.  741. 

«s  Gascoigne  v.  Gascoigne  [1918],  1  K.  B.  223  (that  defendant  held  title  as  trustee  for  plaintiff).  See 
Donohoe  ».  Rogers  (1914),  168  Cal.  700, 144  Pac.,958;  Porten  v.  Peterson  (1918)  Minn.),  166  N.  W  184  (that 
plaintiffs  were  equitable  mortgagees).  See  also  Hodge  v.  Atty.  Gen.  (1838),  3  Young  &  Co..  342.  In  re  Bogg 
11917],  2  Ch.  239  (that  certain  land  was  subject  to  a  use,  or  as  in  Norman  v.  Johnson  ( 1860),  6  Jur.  n.  s.  905,  to  a 
lien  to  the  amount  of  an  annuity);  the  priority  of  plaintiff's  claim  over  a  certain  mortgage  (Pearce  v.  Bulteel 
[1916],  2  Ch.,  544);  whether  certain  property  was  to  be  treated  as  realty  or  personalty  (In  re  Alston  11917], 
2  Ch.,  226);  whether  there  was  a  merger  of  estates  (In  re  Fletcher  [1917],  1  Ch.  147). 

8«  Declaration  that  plaintiff  had  power  of  tenant  for  life  and  could  as  such  give  good  title  (In  re  Trafford's 
Settled  Estates  [1915],  1  Ch.,  9).  See  also  In  re  Burroughs- Fowler  [1916],  2  Ch.,  251.  That  trustees  had  power 
to  give  good  title  to  a  life-rent  (Chaplin's  Trustees  v.  Hoile  (1890).  28  SL.  R.,  51 ).  Earl  of  Mansfield  v.  Stewart 
(1846),  5  Bell's  App.,  158.  Goburdhun  P.  Munnoo  (1871),  15  W.  R.,  95.  See  illustrations  (6),  (e),  (/),  and 
(g)  under  sec.  42  of  the  Indian  Specific  Relief  Act,  1877,  Collett,  op.  cit.  221. 

345  In  re  Wills  &  Hopkinson's  Contract  [1916],  2  Ch.,  289. 

»4«  See  statute  of  (1862)  25  and  26  Viet.,  ch.  67,  sec.  48:  and  Gledhill  v.  Hunter  (1880),  14  Ch.  D.,  492;  In  re 
Kenny's  Estate  [1897],  1  I.  R.,  318;  Billing  v.  Welch  (1870,  Ir.),  6  Q.  B.,  64;  Chunia  v.  Ramdial  (1877),  1 
Indian  L.  Rep.,  Allahabad,  360.  Declaration  that  claimant  was  a  mortgagee:  Gabin  v.  Udai  (1870)  6  Ben- 
gal L  R.,  320.  That  plaintiff  was  lessee  under  a  valid  and  subsisting  lease:  West  v.  Gwynne  [1911],  2  Ch.  1; 
Cornish  v.  Boles  (1914,  A.  D.),  31  Ont.  L.  Rep.,  505. 

847  Earl  of  Galloway  v.  Garlies  (1838)  16  S.,  1212;  Magistrates  of  Edinburgh  v.  Warrender  (1863),  1  M.,  887. 
See  also  TheManar  [1903],  P.  95. 

848  Supra,  p.  31. 

»« (1856)  2  K.  &  J.,  753,  760,  761. 


52  THE  DECLARATORY  JTJDGTtiEE'NT. 

title  was  unaffected  by  an  equitable  claim  of  the  defendant  of  which  he 
had  no  notice  when  he  acquired  the  legal  title,  the  declaration  was 
refused.  Such  declarations  may  now  be  made.350  So  whenever  one's 
title  is  placed  in  jeopardy  by  some  act  or  claim  of  another,  a  suit  will 
lie  for  a  declaration  that  such  act  or  claim  is  void  as  against  the  plain- 
tiff. Thus  in  India,  declarations  are  frequently  asked  and  made  that 
attempted  alienations  or  adoptions,  impairing  the  interests  of  rever- 
sioners,  are  void,351  or  that  trespassers  under  claim  of  right  have  no 
right.352  In  Austen  v.  Collins,353  often  cited  under  the  head  of  declara- 
tory judgments,  a  tenant  for  life  obtained  a  declaration  that  his  life- 
estate  had  not  been  divested  by  his  noncompliance  with  a  certain 
clause  under  a  will,  the  failure  having  been  due  to  circumstances 
beyond  his  control. 

An  excellent  illustration  of  the  efficacy  of  the  declaratory  action 
to  settle  disputed  rights  without  stirring  up  legal  hostilities  lies  in 
the  field  of  easements  and  servitudes.  "With  certain  limited  statutory 
exceptions,  the  present  method  of  trying  disputed  claims  to  easements 
is  for  the  claimant  of  the  easement  to  endeavor  to  enjoin  the  owner 
of  the  land  from  interfering  with  his  easement  and  in  addition  to  sue 
for  damages  if  he  does,  or  for  the  owner  of  the  land  to  take  similar 
steps  to  protect  himself  or  secure  redress.  Only  then  can  a  court 
determine  whether  in  fact  there  existed  a  valid  easement,  the  only 
matter  in  issue.  In  the  Roman  law,  the  person  claiming  a  servitude 
had  an  actio  in  rem  confessoria,  the  owner  of  the  land  disputing  the 
servitude  an  actio  in  rem  negatoria.  In  countries  enjoying  the 
benefits  of  declaratory  procedure,  such  questions  are  generally  tried 
by  declaratory  action.  Thus,  claimants  to  a  right  of  way,354  to  sub- 
terranean support  of  surface  lands,355  to  the  use  of  the  foreshore,356 
and  to  the  unimpeded  flow  of  water  357  have  brought  declaratory 
actions  to  confirm  their  claims.  On  the  other  hand,  the  owners  of 
land  have  sought  declarations  of  privilege  and  right  to  the  effect 
that  defendants  had  no  right  of  way,358  no  right  and  no  privilege  to 
run  their  rain-water  on  plaintiff's  land,359  or  to  send  their  sewage 
through  plaintiff's  sewer,360  no  easement  of  light,361  or  no  servitude 
over  plaintiff's  land.382 

Questions  of  title  to  personal  property  may  likewise  be  tried  by 
declaratory  action,  either  in  the  affirmative  or  in  the  negative  form. 
Thus  during  the  present  war  the  British  Admiralty  has  frequently 
requisitioned  ships  under  charter,  and  the  question  as  to  the  respec- 
tive right  of  owner  and  charterer  to  the  compensation  due  has  been 

•»  Fing  Ping  Shun  v.  Tong  Shun  (P.  C.)  [1918],  A.  C.,  403;  Bollard  v.  Ollivier  (1881,  N.  Z.),  1  S.  C.  R. 
197. 

»si  Venkatanarayana  v.  Subbamune  (1915),  L.  R.  42,  Indian  App.  125.  See  Illustrations  (e)  and  (/)  to  sec. 
42  of  Specific  Relief  Act,  Collett,  op.  cit.,  222. 

a«  Bissessuri  v.  Baroda  (1884),  10  Indian  L.  Rep..  Calcutta,  1076;  Sarat  v.  Nritya  (1910),  13  Calcutta  L.  J. 
284.  See  also  Collis  v.  Amphlett  (C.  A.)  [1918],  1  Ch.,  232. 

**  (1886,  Ch.),  54  L.  T.,  903. 

»<  Nicholls  v.  Nicholls  (1899,  Ch.),  81  L.  T.,  811;  Gooderham  v.  City  of  Toronto  (1891),  21  O.  R.,  120; 
19  A.  R.,  64;  In  re  Jameson's  Estate  [18951,  Ir.  L.  R.,  469. 

*  Davies  v.  Powell  Duffryn  Steam  Coal  Co.  [1917],  1  Ch.,  488. 

»•  Champion  and  White  v.  City  of  Vancouver  (1916),  23  Br.  Col.,  221. 

«"  Wuzeerooddeen  v.  Sheobund  (1869),  11  W.  R.,  285. 

a*  Taff  Vale  Ry.  Co.  v.  Cardiff  Ry.  Co.  (C.  A.),  [1917],  1  Ch.,  299;  Thornhill  ».  Weeks  [1913],  1  Ch.,  438, 
464;  Magistrates  of  Edinburgh  v.  Warrender  (1863),  1  M.,  887.  See  illustration  (6)  to  sec.  42  of  Indian 
Specific  Relief  Act,  Collett,  op.  cit.  221. 

»•  Fay  v.  Prentice  (1845),  1  C.  B..  828. 

»»  Islington  Vestry  v.  Hornsey  U.  D.  C.  (C.  A.)  [1900],  1  Ch.,  695. 

M1  Ankerson  v.  Connelly  [190IY],  2  Ch.  544;  [1907],  1  Ch.,  678. 

**  Llandudno  U.  D.  C.  v.  Woods  [1899],  2  Ch.,  705  (to  hold  religious  services  on  plaintiff's  seashore); 
Surjamani  v.  Shaik  (1912),  15  Calcutta  L.  J.,  36,  notes.  Rights  of  easement  or  servitude  are  triable  by 
declaration  in  Germany,  Petersen,  op.  cit.,  499. 


THE  DECLAKATORY   JUDGMENT.  53 

settled  by  declaratory  action  between  the  two  claimants.363  Conflict- 
ing questions  of  title  to  certain  funds  as  between  private  individu- 
als 3<l4  or  between  private  individuals  and  the  Government,365  or  of 
title  to  specific  chattels,366  may  be  determined  by  declaratory  judg- 
ment. Questions  of  priority  of  different  classes  of  creditors,  e.  g., 
mortgagees  and  material  men  of  a  ship,367  and  adverse  questions  of 
title  to  choses  in  action,368  have  also  been  determined  by  this  pro- 
cedure. Declaratory  actions  have  been  brought  to  try  the  title  to 
such  authorized  monopolies  as  patent,369  copyright,370  or  trade-mark  371 
privileges  and  other  franchises.372 

OBLIGATIONS    NOT    CONTRACTUAL. 

Aside  from  the  various  classes  of  questions  above  presented  which 
have  proved  themselves  eminently  suited  to  solution  by  declaratory 
action,  other  questions  of  more  miscellaneous  character  may,  for 
purposes  of  presentation,  be  grouped  under  the  general,  if  not  always 
juristically  accurate,  classification  of  noncontractual  obligations. 
These  will  include  questions  of  administrative  law  arising  between 
the  state  and  the  individual.  As  a  matter  of  arrangement  the  cases 
will  be  grouped  according  to  the  principal  jural  relation  which  was 
placed  in  issue,  so  that  the  discussion  will  follow  the  order  of  affirma- 
tive declarations  of  right  or  duty,  power  or  liability,  and  negative 
declarations  of  privilege  or  no  right,  immunity  or  disability.  It  may 
again  be  observed  that  frequently  one  principal  jural  relation  is 
placed  in  issue  for  the  purpose  of  proving  the  existence  of  other 
jural  relations,  and  the  declaration  of  one  pair  of  jural  relations, 
such  as  a  right  and  its  correlative  duty,  will  practically  always  imply 
the  existence  of  other  pairs  of  relations. 

The  declaration  of  right  proper,  or  one's  affirmative  claim  to  the 
performance  of  a  duty  by  another,  is  illustrated  in  declaratory  actions 
by  the  assertion  of  a  right  to  recover  moneys  due  the  plaintiff,  e.  g.,  a 
declaration  that  the  principal  had  a  right  to  the  secret  commissions 
received  by  his  agent  from  persons  dealing  with  the  principal 373  or  that 
the  officers  and  crew  of  certain  warships  had  a  right  to  prize  money 
or  to  share  in  prize  money  already  awarded 374  or  to  recover  the  value 

3M  London-American  Maritime  Tr.  Co.  v.  Rio  de  Janeiro  Tramway,  etc.,  Co.  [1917],  2  K.  B.,  611;  Chines* 
Mining,  etc.,  Co.  v.  Sale  &  Co.  [1917],  2  K.  B.,  599. 

s«<  Davidson  v.  Davidson  (1906),  14  S.  L.  T.,  337. 

**>  Robson  v.  Atty.-Gen.  [1917],  2  Ch.,  18. 

sw  Rawlinson  v.  Mort  (1905),  93  L.  T..  555;  Pritchett  v.  Currie  (C.  A.),  [1916],  2  Ch.,  515.  In  India,  this 
even  includes  questions  of  conflicting  claims  to  the  possession  of  a  wife.  Vumanabai  v.  Narayan  (1876), 
1  Indian  L.  Rep.,  Bombay,  164,  167.  For  Germany,  see  (1899),  44  R.  G.,  163, 165. 

i"  The  Manar  [1903],  P.,  95.    See  also  sec.  146  of  the  German  Bankruptcy  Code. 

S8S  Shares  of  stock,  Coleman  v.  London  County,  etc.,  Bank  [1916],  2  Ch.,  353.  Policies  of  insurance, 
Seligman  v.  Eagle  Insurance  Co.  [1917],  1  Ch.,  519.  Whether  a  certain  claim  was  part  of  judgment  debtor'! 
assets.  Steward  v.  Guibord  (1903).  6  Ont.  L.  Rep.,  262. 

«»  N.  E.  Marine  Engineering  Co.  v.  Leeds  Forge  Co.  [1906],  1  Ch.,  324,  where  the  plaintiffs  claimed  a 
declaration  that  defendants'  patent  was  invalid,  and  that  the  former  had  not  infringed  any  legal  rights 
of  the  latter.  The  declaration  was  denied  because  there  was  a  statutory  way  of  trying  the  question.  But 
the  principle  of  such  actions  was  admitted.  Why  should  it  be  necessary  for  a  new  patentee  to  build  a 
factory  and  begin  manufacturing  an  article  and  causing  injury  before  a  contesting  older  patentee  alleging 
interference  can  bring  his  action?  Why  should  not  either  one  of  them,  before  any  expense  is  incurred 
or  damage  is  caused,  be  able  to  test  the  validity  of  their  conflicting  claims  by  declaratory  action? 
n  8'<>  British  Actors  Film  Co.,  Ltd.,  v.  Glover  [1918],  1  K.  B.,  299. 

«*!  Bruce  v.  Commonwealth  Trademark  Label  Asso.  (1907,  Aus.),  4  C.  L.  R.,  1569.  For  a  case  in  Ger- 
many, see  (1905)  61  R.  G.,  18, 19. 

s«  Hammerton  v.  Earl  of  Dysart  (H.  L.)  [1916],  1  A.  C.,  57  (a  ferry  franchise).  Jurisdiction  by  declaration 
was  denied  in  Queansland  on  a  question  of  contested  title  to  an  office  in  a  voluntary  association;  Murray 
v.  Parnell  (1909),  Q.  S.  C.,  65.  But  a  public  officer  in  Scotland  was  allowed  to  test  his  title  to  the  office 
be  declarator.  Goldie  v.  Christie  &  Petrie  (1868),  6  M.,  541.  In  England  and  the  United  States  the  writ 
of  quo  warranto  is  the  procedure  adopted  for  this  purpose. 

373  Powell  v.  Jones  [1905],  1  K.  B.,  11. 

"<  In  the  matter  of  the  German  Cruiser  Konigsberg  [1917],  P.,  174;  In  re  the  Battle  of  the  Falkland 
Islands  [1917],  P.,  47. 


54  THE  DECLARATORY  JUDGMENT. 

of  requisitioned  ships  lost  by  the  government.375  It  will  be  observed 
that  declaratory  actions  may  be  brought  against  the  government, 
although  necessarily  begun  by  petition  of  right  or  statutory  permis- 
sion, and  it  may  be  said  that  in  England  and  in  the  United  States 
Court  of  Claims  a  declaratory  judgment  is  the  only  form  of  judgment 
that  can  be  rendered  against  the  government,  for  the  court  has  no 
power  to  make  an  executory  decree. 

This  same  advantage  of  the  plaintiff  may  be  demanded  in  the  form 
of  a  declaration  of  the  defendant's  duty  to  do  something  for  the  bene- 
fit of  the  plaintiff,  either  to  pay  a  sum  of  money378  or  to  do  some 
specific  act,377  to  bear  a  particular  burden,378  or  to  forbear  from  some 
particular  act.  Thus,  wnere  a  newspaper  reporter  sought  a  declara- 
tion of  his  right  and  privilege  to  enter  a  public  building,  the  city  hall, 
it  was  held  that  the  defendant  mayor  had  no  right  that  he  should  keep 
out  and  no  privilege  to  keep  him  out  (i.  e.,  was  under  a  duty  to  refrain 
from  keeping  him  out.379  Declarations  have  been  asked  and  main- 
tained of  the  defendant's  [secondary]  duty  to  make  good  any  losses 
which  the  plaintiff  company  might  sustain  now  or  in  the  future  because 
of  the  defendant  director's  negligent  conduct  of  its  affairs380  or  because 
of  the  defendant's  continuing  negligence.381  If  the  act  and  the  result- 
ing duty  are  complete,  although  the  damages  can  not  yet  be  estimated, 
the  declaration  would  of  course  be  a  declaration  of  duty.382 

The  declaration  of  the  plaintiff's  power  is  illustrated  by  such  cases 
as  those  already  mentioned  of  a  life-tenant  who  asserts  his  power  of 
alienation 383  or  of  a  lessee  who  asserts  his  power  of  assignment  of  the 
lease  without  consent  of  the  lessor.384 

Declarations  of  the  defendant's  liability  in  the  technical  conceptual 
sense  of  that  term  are  infrequent.  Those  cases  in  which  the  court  has 
declared  that  the  defandant  is  liable  to  certain  duties  provided  the 
plaintiff  exercises  his  power  to  convert  this  liability  into  a  duty  are 
illustrations.  Thus,  where  the  court  declared  that  the  defendant 
was  bound  to  pay  a  certain  sum  provided  the  plaintiff  tendered  a 
receipt,385  or  that  the  defendant  was  under  a  duty  to  furnish  wood 
from  his  estate  if,  as,  and  when  the  plaintiff  municipality  requested 
it,388  or  that  the  defendant  father  was  under  a  duty  to  furnish  his 
plaintiff  daughter  with  an  outfit  when  she  married,387  declarations  of 
liability  as  well  as  of  conditional  duty  were  made.  In  these  cases  the 
power  to  convert  the  liability  into  a  duty  resided  in  the  plaintiff,  but 
we  believe  the  jural  relation  to  be  the  same  if  the  power  is  vested  in 
a  third  person.  Thus,  where  a  fraternal  benefit  society  asked  a  dec- 

*»  British  &  Foreign  Steamship  Co.  v.  The  King  [1917],  2  K.  B.,  769.  For  German  cases  between  private 
.individuals,  see  (1903)  55  R.  G.,  158,  160;  (1911)  75  R.  G.,  406. 

376  Atty.  Gen.  v.  Watson  [1917],  2  K.  B.,  427  (the  payment  of  estate  tax).  Carlton  Main  Colliery  Co.  v. 
Clawley  (C.  A.)  [1917],  2  K.  B.,  691  (Sums  payable  to  dependents  under  Workmen's  Compensation  Act, 
1906).  So  questions  of  the  incidence  of  the  duty  to  pay  taxes  may  be  tried  by  declaratory  action.  In  re 
Smyth  [1917],  2  Ch.,  331;  In  re  Scott  (C.  A.)  [1916],  2  Ch.,  268. 

*»  To  keep  and  maintain  a  highway  of  a  certain  construction  and  strength.  Atty.  Gen.  v.  Scott  (1904, 
K.  B.),  20  T.  L.  R.,  630,  633.  To  convey  to  the  equitable  mortgagees  (plaintiffs)  a  legal  mortgage.  In  re 
Smith  [1916],  2  Ch.,  206. 

378  To  bear  certain  charges  for  public  improvements  made  by  the  city.  Corp.  of  Bristol  v.  Sinnott  [19171, 
2  Ch.,  340. 

**»  Journal  Printing  Co.  v.  McVeity  (1915),  33  Ont.  L.  Rep.,  166. 

88°  In  re  Dominion  Trust  Co.  and  Machray  (1916).  23  Br.  Col.,  401. 

*»  Evans  v.  Manchester,  etc..  Ry.  Co.  (1887),  36  Ch.  D.,  626,  640;  Azeeza  v.  The  Corporation  of  Calcutta 
(1916),  24  Calcutta  L.  J.,  562  (duty  to  compensate  for  loss  which  might  be  sustained  through  defendant's- 
subsequent  removal  of  certain  fixtures). 

382  (1885)  13  R.  G.,  372. 

*»  Supra,  cases  cited  in  note  344. 

'w  Supra,  cases  cited  in  note  284. 

**  Morton  et  al.  v.  Smith  (1864).  3  M.,  29.     ' 

a*8  (1898)  41  R.  G.,  369. 

»  (1901)  49  R.  G.,  370. 


THE  DECLARATORY  JUDGMENT.  55 

laration  against  the  state  that  the  latter  was  liable  to  make  good  any 
losses  which  the  plaintiff  society  might  have  to  meet  in  the  future 
because  of  then  undisclosed  claims  of  third  persons  (members)  injured 
in  a  railroad  accident  caused  by  the  |  state's  negligence,  a  case  of  lia- 
bility is  presented.388  Perhaps  the  declarations  asked  by  prospective 
tax  payers  of  what  their  liability  to  taxes  will  be  in  different  dis- 
tricts 389  may  be  classified  under  the  head  of  liability. 

Probably  a  greater  interest  in  the  use  of  the  declaratory  judgment 
lies  in  its  power  to  settle  questions  of  privilege  or  no-right,  immunity 
or  disability,  where  the  plaintiff  may  or  may  not  have  any  affirmative 
cause  of  action,  but  asks  for  a  declaration  in  the  negative  form  either 
that  he  himself  is  under  no  duty  to  (freedom  from  the  right  of)  the 
defendant  or  that  he  is  under  no  liability  to  (immunity  from)  the 
defendant's  power  or  control  or  else  he  may  assert  that  the  defendant 
has  no-right  against  the  plaintiff  or  has  no  power  over  (disability 
against)  him  or  his  jural  relations.  These  various  negative  forms  of 
declaration  warrant  closer  examination. 

The  only  reason  for  classifying  the  assertion  of  a  plaintiff's  privi- 
lege among  negative  forms  of  declaration  is  because  the  court's 
finding  is  practically  always  pronounced  in  the  form  of  the  defendant's 
no-right  that  the  plaintiff  shall  not  act  in  accordance  with  his  privilege, 
or  of  the  no-duty  of  the  plaintiff  to  the  defendant.  Otherwise,  there 
is  nothing  inherently  negative  about  a  privilege. 

Illustration  (g)  to  section  42  of  the  Indian  Specific  Relief  Act  reads 
as  follows: 

A  is  in  possession  of  certain  property.  B,  alleging  that  he  is  the  owner  of  the  prop- 
erty, requires  A  to  deliver  it  to  him.  A  may  obtain  a  declaration  of  his  right  [privi- 
lege] to  hold  the  property. 

But  the  court's  declaration  in  practice  will  be  in  the  negative  form 
either  that  A  is  under  no  duty  to  deliver  it  to  B,  or  that  B  has  no  right 
to  the  property.  It  will  be  recalled  that  when  a  privilege  not  ex- 
pressly limited  by  license  is  actively  contested  or  its  enjoyment  ob- 
structed it  merges,  as  against  the  person  interfering,  into  a  right. 

The  assertion  of  privilege  in  the  form  of  plaintiff's  no-duty  is  illus- 
trated by  the  case  of  Guaranty  Trust  Co.  v.  Hannay  39°  in  which  the 
plaintiffs  sought  a  declaration  that  they  were  under  no  duty  to 
return  to  the  defendants  certain  sums  which  had  been  paid  to  them. 
The  same  form  of  declaration  is  illustrated  by  such  cases  as  the  fol- 
lowing: the  plaintiff  claims  that  a  certain  contract  is  no  longer 
binding  on  him;391  that  he  is  under  no  duty  to  answer  certain  ques- 
tions or  produce  certain  documents  asked  by  a  legislative  commis- 
sion;392 that  he  is  under  no  duty  to  make  certain  returns  on  forms 
submitted  by  the  commissioner  of  internal  revenue  393 — this  case  also 
involved  a  declaration  of  immunity  inasmuch  as  the  plaintiff  con- 
tended that  the  form  was  ultra  vires  (no  power).  We  have  mentioned 
already  a  case  in  Germany  in  which  a  washing  powder  placed  on  the 
market  by  the  plaintiff  was  alleged  by  defendant  to  have  injured 
her  eyes,  whereupon  plaintiff  asked  for  a  declaration  that  she  was 

»»  (1905)  61  R.  G.,  164,  166. 

»89  Edinburgh  &  Glasgow  Ry.  Co.  v.  Meek  (1849),  12  D.,  153. 
390  (C.  A.)  [1015],  2  K.  B.,  53rt. 
s»i  Supra,  note  301. 

39J  Cobni.il  Sugar  Reining  Co.,  Ltd.  v.  The  Atty.  Gen.  (1912.  Aus.),  15  C.  L.  R.,  182. 
333  D/san  v.  Atty.  Gen.  [1911],  1  K.  B.,  410;  (C.  A.)  [1912]  1  Ch.  158,  167;  Burghes  r.  Atty.  Gen.  [1911]  2 
Ch.  139, 155;  (C.  A.)  [1912]  1  Ch.  173. 


56  THE  DECLARATORY   JUDGMENT. 

under  no  duty  to  make  good  the  damage  defendant  may  have  sus- 
tained.394 

Privilege,  as  already  observed,  is  frequently  asserted  in  the  form 
of  no  right  of  the  defendant.  Thus,  we  have  seen  that  the  owner  of 
land 'may,  as  plaintiff,  seek  a  declaration  that  the  defendant  has  no 
easement  or  servitude  over  his  land.395  So  also,  an  alleged  debtor 
against  whom  a  claim  is  asserted  may  seek  a  declaration  that  his 
alleged  creditor  has  no  claim  (right)  against  him  39fl  or  no  right  to 
assert  any  other  demand  to  the  detriment  of  the  plaintiff.397  So, 
where  steamship  owners  asserted  their  privilege  of  operating  a  certain 
steamer  then  en  route  for  their  own  account  and  of  keeping  the  profits 
in  spite  of  the  shipping  controller's  requisition  of  the  ship,  it  was 
held  that  the  controller  had  no  right  to  the  plaintiff 's  services  and 
to  the  running  accounts,  but  that  his  rights  against  the  plaintiffs 
arose  only  after  the  completion  of  the  ship's  voyage;  until  that  time 
the  plaintiffs  were  privileged  and  immune  from  his  regulations.398 

Many  possibilities  of  extending  this  useful  function  of  a  declara- 
tory judgment  of  privilege  as  an  aid  to  the  stability  and  security  of 
legal  relations  suggest  themselves.  For  example,  it  was  nearly  20 
years  after  its  enactment  before  the  business  world  was  able  to  learn 
authoritatively  what  the  Sherman  law  actually  meant.  For  some 
years  before  the  decision  of  the  first  case  the  Department  of  Justice 
had  held  the  Sherman  law  like  a  sword  of  Damocles  over  the  heads  of 
large  business  concerns  entering  into  cooperative  agreements,  reor- 
ganizations and  combinations  of  various  kinds  and  degree.  Yet 
when  the  Department  of  Justice  was  asked  whether  a  specific  agree- 
ment was  a  violation  of  the  law,  the  department  could  not  and  did 
not  answer,  asserting  first,  that  that  was  a  question  for  private 
counsel  and  secondly,  a  question  for  the  courts.  So  the  advice  of 
counsel  was  sought  and  their  conjecture  as  to  the  meaning  of  the  law 
was  followed ;  and  so  these  large  organizations  stumbled  along  carry- 
ing enormous  responsibilities  in  the  hope  that  the  law  had  not  been 
violated,  until  the  Department  of  Justice  got  ready  to  try  a  few 
test  cases.  Then  came  expensive  litigation  and  an  unscrambling  of 
many  combinations,  a  process  which  represented  business  destruction 
and  uncertainty  and  an  economic  loss  and  waste  impossible  of  calcu- 
lation. Why  should  private  business  have  been  left  for  years  in 
such  grave  uncertainty  ?  Why  should  it  not  have  been  possible  for 
two  or  more  business  concerns  contemplating  a  certain  form  of  co- 
operative reorganization,  yet  threatened  by  the  Sherman  law,  to 
assert  their  privilege  to  enter  into  and  execute  the  proposed  agree- 
ments, citing  the  Attorney  General  as  a  defendant,  and  request  from 
the  courts  a  declaration  of  their  privilege  to  act  and  their  right  to  no 
interference  and  of  the  government's  no-right  that  the  concerns 
should  refrain  from  the  execution  of  these  agreements.  Then  the 
sword  would  either  have  fallen  or  have  been  withdrawn  and  business 
might  have  proceeded  with  some  degree  of  certainty  and  security. 
Thus,  a  simple  procedure  used  as  an  instrument  of  preventive  justice 

*><  (1909)  71  R.  G.,  08. 

*>5  Supra,  notes  358-3C2:  and  see  Harrison  v.  Rutland  [1893],  1  Q.  B.,  142. 

™  (1899)  44  R.  G     183;  (1913)  82  R.  G     170. 

897  E.  g.,  for  a  creditor  to  keep  a  special  security  against  a  hankrupt  when  he  had  proved  his  claim  among 
the  general  creditors:  In  re  Pawson  [1917]  2  K.  B.,  527;  to  keep  plaintiff's  name  on  the  list  of  shareholders 
when  this  is  a  disadvantage  to  plaintiff:  Kinghornw.  Glenyards  Fireclay  Co.  Ltd.,  ()907,  Sc.)  14  S.  L.  T.683. 

398  China  Mutual  Steam  .V.ws;ition  Co.,  Ltd.  v.  MaoLay  [1918]  1  K.  B.  33. 


THE  DECLARATORY  JUDGMENT.  57 

might  have  saved  the  community  and  private  business  untold  loss, 
inconvenience  and  uncertainty.389 

The  last  two  jural  relations  which  we  have  undertaken  to  discuss 
are  immunity  (or  no  liability)  and  disability  (or  no  power).  They 
find  large  room  for  application  in  the  field  of  administrative  law  in 
which  private  individuals  may  contest  the  validity  of  governmental 
acts  by  asserting  the  diasbility  of  legislative  or  administrative  author- 
ities to  promulgate  such  state  acts  or  else  their  disability  to  enact  or 
issue  them,  respectively,  in  the  manner  pursued,  and  hence  their  own 
immunity  from  any  legal  relations  that  purport  to  be  created  by  such 
unlawful  or  invalid  state  acts.  These  jural  correlatives  of  immunity 
and  disability  have  also,  however,  as  we  shall  presently  see,  consider- 
able application  in  private  legal  relations. 

The  declaration  of  immunity  or  exemption  from  taxation  has  fre- 
quently been  the  object  of  judicial  determination,400  although  the  com- 
plete or  partial  invalidity  of  tax  laws  or  of  administrative  powers  exer- 
cised under  them  is  usually  asserted  in  the  form  of  a  declaration  of 
the  correlative  jural  relation  of  disability  (no  power).  Exemption 
from  military  service  is  an  illustration  of  immunity,401  as  well  as  of  the 
privilege  of  not  serving. 

Declarations  of  disability  of  the  defendant,  while  often  combined 
with  declarations  of  immunity  of  the  plaintiff,  are  nevertheless 
emphasized  as  the  principal  jural  relation  in  issue  when  the  validity 
of  a  state  act  is  contested.  Thus,  declarations  have  been  sought  that 
particular  acts  of  governmental  authorities  were  ultra  vires  (i.  e., 
that  the  authority  had  no  power  to  create  any  new  legal  relations  by 
executing  them),  e.  g.,  the  repudiation  of  an  agreement  by  the  post- 
master-general,402 the  issuance  of  certain  -forms  by  the  internal  revenue 
officers,403  the  requisitioning  of  certain  services  and  profits  of  the 
plaintiffs,404  the  expropriation  of  certain  land,  405  the  manner  of  can- 
celling certain  mining  leases  by  the  governor,406  the  method  of  impos- 
ing taxes  by  local  authorities,407  and  the  manner  of  rejecting  votes 
by  local  officers.408  So  also  declarations  of  disability  have  been  sought 
against  the  acts  of  private  persons  acting  under  private  acts,  charters 
or  agreements.  Such  declarations  have  been  made  against  the  power 
of  employers  to  make  certain  deductions  from  wages  under  the  Truck 
Act,  183 1,409  of  school  authorities  to  exclude  certain  poor  children,410 

s"  This  procedure  has  close  analogy  to  the  declaration  of  perpetual  silence.  The  plaintiff  cites  the  defend 
ant  who  threatens  him  with  a  charge  or  with  an  action,  and  the  court  asks  the  defendant  to  prove  his  charge 
or  ever  thereafter  remain  silent.  This  proceeding,  of  ancient  origin,  which  is  in  force  in  many  countries, 
may  be  extended  by  us  to  alleviate  many  cf  the  crudities  of  our  law  of  libel  and  slander,  in  which  the  neces- 
sity of  proving  a  pecuniary  injury  now  constitutes  such  an  important  element  for  practical  purposes.  Mr. 
Nathan,  in  4  Common  Law  of  South  Africa,  2387,  states,  that '  'it  has  been  held  that  in  a  criminal  prosecution 
where  a  preliminary  examinat  ion  has  not  been  closed,  an  accused  person  is  not  entitled  to  a  decree  of  per- 
prtual  silence  against  the  Crown.  TCx  parte  Bok  (1880,  Trans.),  K.,  223."  This  hardly  constitutes  a  prec- 
edent, however,  against  the  preventive  'action  here  proposed. 

*»  Re  Smyth  (1917,  Ch.  0.  A.),  117  L.  T.,  793;  Ottawa  Y.  M.  C.  A.  v.  City  of  Ottawa  (1913),  29  Ont.  L. 
Rep.,  582;  Atty.  Gen.  of  Queensland  v.  Atty.  Gen.  for  Commonwealth  (1915),  20  C.  L.  R.,  148;  Hogg  v, 
Parochial  Board  of  Auchtermuehty  (1880),  7  R.,  986. 

<«  Flint  v  Atty.  Gen.  [1918],!  Ch.,'210.  See  also  London  Assn.  of  Shipowners  v.  London  &  India  Docks.etc. 
[1892],  3  Ch.,  242:  that  plaintills  wero  not  liable  (immune)  to  bear  certain  unlawful  charges  assessed  upon 
certain  docks  they  might  wish  to  use. 

<IB  Marconi's  Wireless  Telegraph  Co.  v.  Rex  (C.  A.)  [19181,  1  K.  B.,  193. 

«»  Burghes  v.  Atty.  Gen.  [1911]  2  Ch..  139,  155;  (C.  A.)  [1912],  1  Ch.,  173. 

W4  China  Mutual  Steam  Navigation  Co.  v.  MacLay  [1918],  1  K.  B.,  33. 

<»  Toronto  Ry.  Co.  v.  City  of  Toronto  (1906),  13  Ont.  L.  Rep.,  532:.  although  it  was  not  granted,  because 
there  was  another  way  of  testing  the  question. 

<«•  The  Silver  Peak  Mines,  Ltd.  v.  Williams  (1917,  N.  S.  W.),  17  St.  R.,  1. 

«w  Elsdon  v.  Hampstead  Corp.  [1905],  2  Ch.,  633;  British  Fisheries  Soc.  v.  Magistrates  of  Wick  (1872,  Scot.), 
10  M.  426.  See  a'.so  Atty.  Gen.  v.  Merthyr  Tydfil  Union  (C.  A.)  [1900],  1  Ch.,  516. 

«»  Atty.  Gen.  v.  Counnl  of  the  MunHp.  of  Canterbury  (1917,  N.  S.  W.),  17  St.  Rep.,  45. 

<w  Williams  v.  North's  Navigation  Collieries  (H.  L.)  [19181.  A.  C.,  136. 

«o  Gatoshead  Guardians  v.  Durham  C.  C.  (C.  A.)  [1918],  1  Ch.,  146;  see  also  Ellis  v.  Duke  of  Bedford  (C.  A.) 
1899],  1  Ch.,  499:  no  power  of  the  Duke  to  exclude  hucksters  from  certain  market  stands. 


58  THE  DECLAKATORY  JUDGMENT. 

of  church  authorities  to  pass  a  certain  sentence  of  ouster  upon  a 
minister,411  of  a  corporation  to  make  a  certain  mortgage  and  issue 
certain  bonds  under  it,  *"  of  a  dock  corporation  to  promulgate  certain 
regulations  under  a  private  act,  413  of  a  stock-exchange  committee  to 
exclude  the  plaintiff  from  membership.414  In  the  absence  of  any 
written  instrument  by  which  the  court  can  judge  the  validity  or  pro- 
priety of  the  acts  of  those  bound  by  the  instrument,  declarations  of 
disability  have  been  asked  against  persons  who  assumed  to  exercise 
powers  which  did  or  might  injure  the  plaintiff.  Thus,  we  have  seen 
that  reversioners  and  remaindermen  may  ask  declarations  of  disability 
against  life  tenants  who  seek  to  exercise  powers  of  alienation,  etc.r 
which  would  impair  their  interests.415 

EFFECT    OF   DECLARATORY   JUDGMENT. 

Declaratory  judgments  operate  as  res  judicata 416  and  bind  the 
parties  and  tneir  privies  within  the  same  limitations  as  attach  to  other 
final  judgments.  Their  force  as  judgments  in  rem  in  cases  of  status 
and  title  to  property  is  forfeited  by  the  power  of  the  court,  in  England, 
at  least,  to  bring  before  it  any  person  who  may  be  interested  in  the 
matter  in  issue.  They  can  not,  of  course,  be  executed,  a  feature  which 
constitutes  their  principal  difference  from  executory  judgments.  In 
the  case  of  those  judgments  which  declare  a  duty,  a  new  action  must 
be  founded  on  them  to  convert  them  into  judgments  on  which  execu- 
tion can  issue.  But  this  point  is  more  academic  than  practical,  for  it 
rarely  proves  necessary  to  resort  to  this  measure;  and  hi  fact,  when 
some  executory  relief  is  desired  in  England,  the  demand  for  it  is  gen- 
erally incorporated  with  the  request  for  the  declaration,  Often, 
indeed,  the  negative  form  of  declaratory  judgment  of  privilege  or 
immunity  can  not  be  followed  by  any  form  of  coercive  relief  at  all,  the 
mere  declaration  that  the  defendant  has  no  claim  against  the  plaintiff 
satisfying  all  the  plaintiff's  requirements.  Should  the  defendant, 
nevertheless,  subsequently  bring  an  action,  he  would  be  met  by  the 
plea  of  res  judicata.  The  old  judgment  can  only  be  reopened  or 
impeached  in  the  same  manner  and  under  the  same  conditions  as  any 
final  executory  judgment. 

CONCLUSION. 

The  above  survey  of  the  many  classes  of  cases  for  the  solution  of 
which  the  declaratory  judgment  has  proved  an  effective  instrument 
will  have  demonstrated  that  the  courts  have  not  exhausted  their  use- 
fulness by  the  employment  of  their  curative  functions,  but  that  there 
remains  a  large  field  for  the  application  of  their  preventive  functions 
which  in  this  country  has  barely  been  touched.  It  will  have  become 
evident  that  the  social  equilibrium,  for  whose  maintenance  law  and 

«i  Fraikelton  v.  Macqueen  (1909,  Queensland),  S.  C.,  89. 

«»  Pacific  Coast  Coal  Mines,  Ltd.  v.  Arbuthnot  (P.  C.)  [1917],  A.  C.,  607. 

«'•'  London  ASSD.  of  Shipowners  v.  London  &  India  "Dooks  Committee  [1892],  3  Ch.,  242. 

«<  This  declaration  was  asked,  but  not  granted.  Cassell  v.  Inglis  [1916],  2  Ch.,  211;  Weinberger  v  Inglis 
(1917.  Ch.),  118  L.  T.,  208. 

«»  Supra,  and  illustrations  (d),  (e),  and  (f)  of  section  42  of  the  Indian  Specific  Relief  Act.  See  also  (1905) 
61R.B.,18,19:  declaration  that  defendant  owners  of  a  certain  trade-mark  had  no  power  to  request  plain  tiffs 
to  withdraw  their  trade-mark  from  the  market,  the  point  at  issue. 

««  There  have  been  exceptions  to  this  rule,  e.  g.,  a  decree  given  ex  parte  declaring  the  plaintiff  of  sound 
mind  was  not  regarded  as  res  judicata  to  found  an  action  for  damages  against  the  keepers  of  an  insane  asylum 
who  had  detained  the  plaintiff  as  insane,  Mackintosh  v.  Smith  and  Lowe  (1864,  Scot.),  2  M.,  389.  So  a 
judgment  where  defendants  had  not  appeared  was  not  regarded  as  res  judicata:  Hair  v.  Town  of  Meaford 
(1914),  31  Ont.  L.  Rep.,  124.  See  also  (1910)  74  R.  G.,  122. 


THE  DECLARATORY  JUDGMENT.  59 

the  courts  as  institutions  exist,  is  disturbed  and  impaired  by  the  uncer- 
tainty and  insecurity  of  legal  relations  as  well  as  by  their  attack  and 
violation.  That  it  is  the  duty  of  the  state  to  afford  the  community 
and  its  members  protection  against  this  uncertainty  and  insecurity 
is  also  self-evident.  Indeed,  many  of  our  States  have  already  recog- 
nized this  fact  by  furnishing  simple  methods  for  the  determination 
of  such  questions  as  adverse  and  doubtful  claims  of  title  to  property 
and  the  construction  of  wills.  The  adoption  of  the  declaratory  judg- 
ment, would  not,  therefore,  be  an  innovation  but  an  extension  of  a 
practice  which,  unconsciously  perhaps,  has  been  accepted  in  isolated 
instances  as  a  useful  aid  in  judicial  machinery.  Doubt  or  hesitation 
concerning  the  advisability  of  fully  adopting  this  important  instru- 
ment of  judicial  procedure  should  vanish  before  the  evidence  of  its 
undoubted  practical  value  afforded  by  the  experience  of  England  and 
of  a  great  part  of  the  civilized  world.  Its  simplicity,  its  capacity  to 
serve  important  ends  of  corrective  justice  without  legal  hostilities,  its 
utility  in  deciding  many  questions  which  can  not  now  be  brought  to 
judicial  cognizance,  its  efficacy  in  removing  uncertainty  from  legal 
relations  before  they  have  ripened  into  a  cause  of  action — that  is,  its 
usefulness  as  an  instrument  of  preventive  justice,  a  field  which  has 
hardly  begun  to  be  cultivated  in  this  country,  commend  the  declara- 
tory judgment  to  the  earnest  attention  of  the  American  bar  and  of  the 
public  which  it  serves.  We  might  with  profit  study  Order  XXV,  rule 
5,  of  the  rules  of  the  English  Supreme  Court.  While  in  this  country 
the  adoption  of  such  a  measure  would  require  legislative  enactment 
rather  man  the  simple  English  promulgation  of  a  rule  of  court,  the 
need  for  the  declaratory  judgment  might  be  met  by  our  States  by  the 
incorporation  of  an  amendment  in  practice  acts  or  codes  of  procedure 
in  the  sense  of  the  following: 

The  [trial]  court  shall  have  power  in  any  action  or  in  an  independent  or  interlocutory 
proceeding,  to  declare  rights  and  other  legal  relations  on  written  request  for  such 
declaration,  whether  or  not  further  relief  is  or  could  be  claimed;  and  such  declaration 
shall  have  the  force  of  a  final  judgment. 


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